National Union of Workers v Super A-Mart Pty Ltd T/A Super A-Mart

[2013] FWC 9156

[2013] FWC 9156

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Super A-Mart Pty Ltd T/A Super A-Mart
(B2013/1410)

COMMISSIONER ROE MELBOURNE, 20 NOVEMBER 2013

Bargaining – majority support determination.

[1] On 8 November 2013 the National Union of Workers (NUW) applied for a majority support determination pursuant to s.236 of the Fair Work Act (the Act).

[2] The relevant provisions of the Act are ss.236 and 237 in full:

“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 Super A-Mart Pty Ltd T/A Super A-Mart (the Employer) in respect of the non-salaried employees of the Employer who work in the warehouse at 83-89 Freight Drive, Somerton, Victoria (Eligible Employees). These employees are separate and distinct from the managerial/office/sales employees who work for the Employer.

[4] The matter was heard on 19 November 2013.

[5] The Employer advised that they did not oppose the application. I am satisfied that the application has been made by a bargaining representative who will be covered by the proposed agreement. I am satisfied that the eligible employees are fairly chosen taking into account the factors in s.237(3A).

[6] I am satisfied by the submissions of the NUW that the conditions required by S.237(2)(b) and (c) are met.

[7] The NUW provided two petitions signed by eligible employees. Having examined the petitions I am satisfied that at least 26 of the employees want to bargain with the Employer for an Agreement covering the employees at that site. I am satisfied by the submission of the NUW and the position taken by the company that this constitutes a majority of the employees who will be covered by the proposed agreement.

[8] Given that I am satisfied that the preconditions for the making of a determination have been met I must make the determination if I am satisfied that it is reasonable in all the circumstances to do so.

[9] I am satisfied that it is appropriate and reasonable in all of the circumstances to make the determination.

Majority Support Determination

[10] A majority of the non-salaried employees of the Employer who work at the warehouse at 83-89 Freight Drive, Somerton, Victoria (Eligible Employees) who will be covered by the proposed Agreement want to bargain for an agreement with Super A-Mart Pty Ltd T/A Super A-Mart (the Employer). This majority support determination will apply from the date of this Decision.

COMMISSIONER

Appearances:

Ms A Grogan and Ms A Economidis appeared for the NUW.

Mr N Shelton and Mr B Darlow appeared for Super A-Mart Pty Ltd.

Hearing details:

2013

Melbourne

November 19

Printed by authority of the Commonwealth Government Printer

<Price code A, PR544823>