National Union of Workers v Penrite Oil Pty Ltd

[2015] FWC 4226

[2015] FWC 4226

The attached document has been corrected for the print number in Paragraph 11 to read.

[11] The application for the majority support determination is therefore granted. A Majority Support Determination [PR 568713] to this effect will be issued today.

Jenny Hannay

Associate to Commissioner Simpson

Dated 24 June 2015

[2015] FWC 4226

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Penrite Oil Pty Ltd
(B2015/569)

COMMISSIONER SIMPSON BRISBANE, 24 JUNE 2015

Determination Penrite Oil Company Pty Ltd 173 Magnesium Drive, Crestmead QLD.

[1] This Decision relates to an Application (B2015/569) made by the National Union of Workers (NUW) under s. 236 of the Fair Work Act 2009 (the Act) for a majority support determination to undertake bargaining for an agreement to cover employees of Penrite Oil Company Pty Ltd (the Respondent) 173 Magnesium Drive Crestmead Queensland.

[2] The matter was listed for Directions where directions were set for the filing of written submissions and evidence. The Applicant filed their material. The Respondent did not file any material but sent correspondence in advising they do not oppose the Application. The listing for hearing was then cancelled with the following notation:

“Correspondence from the Respondent advising the Commission they do not oppose this Application has been received. The above listing has now been cancelled. Commissioner Simpson’s intends to deal with this matter on the papers, unless parties wish to be heard.

If parties do wish to be heard, please notify chambers by 10am Wednesday 24 June 2015.”

[3] The only response was correspondence from the NUW in regard to a matter affecting a Team Leader role. That matter does not affect my determination of this application.

Legislation

[4] Section 236 of the Act relates to applications for majority support determinations:

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC 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.”

[5] Section 237 of the Act sets out the legislative tests for a majority support determination:

“237 When FWC must make a majority support determination

Majority support determination

(1) 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) FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWC must be satisfied before making a majority support determination

(2) 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 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), FWC may work out whether a majority of employees want to bargain using any method FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, 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.”

Summary of submissions

[6] With respect to the majority support determination application, the NUW submitted that it is a bargaining representative as defined in the Fair Work Act 2009 and that the NUW has members employed by the Respondent, Penrite Oil Company Pty Ltd, who will be covered by the proposed agreement.

[7] The NUW submitted that a majority of employees who will be covered by a proposed agreement want to bargain with Respondent. It bases this submission on a petition that was provided by the NUW. The petition contained 13 employees’ names, date and signatures.

[8] Section 237(2)(a), Majority support, the Applicant submits:

a. To issue the determination sought the FWC must be satisfied that a majority of employees who are employed at a time determined by the FWC and will be covered by the agreement want to bargain.

b. The evidence before the FWC, in the form of a petition signed by employees, establishes that a majority of employees to be covered by the agreement wish to bargain.

c. There were in fact two petitions. The first is attached to the Statement of Paul McGrath. The second is attached to the Statement of Brett Carey. In both cases, the Respondent has been provided with a redacted copies of the petition.

d. In this matter the NUW relies upon the second petition.

e. A distinguishing feature between the petitions is that the second clearly identifies whether the employee is employed by the Respondent or is a casual employee engaged by Adecco Australia and working at the Crestmead site.

f. The petition has been signed by 9 employees that will be covered by the proposed enterprise agreement. The NUW submits that there are 11 employees employed by the Respondent at the Crestmead site who would be covered by the proposed agreement.

g. The 9 signatures are those of the 8 employees of the Respondent and one employee who is employed by Adecco.

h. It is submitted that as more than 50% (i.e.: a simple majority or absolute majority) of the employees who will be covered by the agreement have demonstrated their support for bargaining, FWC should find a majority.

[9] The NUW submitted that it has corresponded with the Respondent requesting they commence bargaining. The Respondent has not agreed to these requests but has made queries on the representation of the team leader role.

[10] The time for determining the majority has been taken at the time of the petition. In terms of s.237 (2)(b), the evidence is that the Employer has not agreed to commence bargaining. In accordance with s.237 (2)(c), the group is chosen fairly and in line with s.237(2)(d), it is reasonable in all the circumstances to make the determination. Accordingly, the tests for a majority support determination in s.237 have been made out and the Determination will issue.

[11] The application for the majority support determination is therefore granted. A Majority Support Determination [PR 568713] to this effect will be issued today.

COMMISSIONER

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