Textile, Clothing and Footwear Union of Australia v Kennon Auto Pty Ltd
[2009] FWA 1377
•1 DECEMBER 2009
[2009] FWA 1377 |
|
DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
v
Kennon Auto Pty Ltd
(B2009/11044)
COMMISSIONER WHELAN | MELBOURNE, 1 DECEMBER 2009 |
Application for a majority support determination.
[1] This is an application by the Textile, Clothing and Footwear Union of Australia (TCFUA) for a majority support determination under section 236 of the Fair Work Act 2009. The relevant provisions of the Act are contained in section 236 and section 237 of the Act:
‘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.’
Background
[2] Kennon Auto Pty Ltd is the current owner of a business formerly owned by Nylex Industrial Products Pty Ltd which went into receivership in April 2009. The TCFUA, which has coverage of production employees on the site had a pre-reform agreement (the Nylex Industrial Products Pty Ltd (Kennon) – TCFUA Certified Agreement 2005 1)with the previous owner which passed its nominal expiry date on 31 August 2008. The union was in the process of negotiating a new agreement with Nylex prior to the company going into receivership.
[3] On 28 September 2009 about 52 employees accepted employment with Kennon Auto Pty Ltd. Forty-five of these were production employees.
[4] On 23 October 2009 at the request of TCFUA members employed by Kennon, Ms Kruschel, TCFUA Assistant Secretary, held two shift meetings with Kennon employees. Mr Stavrou, TCFUA delegate, was in attendance at the day shift meeting. Mr Stavrou stated that roughly 17 employees were present. Ms Kruschel estimated that 16 to 20 employees attended the day shift meeting and about the same number attended the afternoon shift meeting.
[5] It was the evidence of Ms Kruschel – supported by Mr Stavrou with respect to the day shift meeting – that the majority of employees at those meetings voted in favour of negotiating a new enterprise agreement.
[6] Following the meeting Mr Stavrou circulated a petition in support of collectively bargaining with their employer for an enterprise agreement amongst the production employees. It was his evidence that he went around and explained what it was about. Because a lot of people are from a non-English speaking background he had other people explain to them in their own language. Thirty-four employees signed the petition.
[7] On 28 October 2009 Ms Kruschel wrote to Mr Sheridan, the operations manager for Kennen Auto, indicating that employees had requested that negotiations commence in relation to bargaining for a collective enterprise agreement. The union requested that Mr Sheridan contact them about a suitable date and time for bargaining to commence.
[8] The following day a memorandum was circulated to the employees by Mr Buntsma, the production manager, which had attached to it a pro forma letter of resignation from the TCFUA.
[9] The union received no response to their letter of 28 October 2009. Mr Sheridan stated that he referred the letter to the owners of the business.
[10] On 5 November 2009, the union wrote again to Mr Sheridan noting that there had been no response to their letter of 28 October and seeking a commitment by 9 November to commence bargaining. The union put the company on notice that in the absence of such a commitment a majority support determination would be sought.
[11] In the absence of any response the union lodged this application on 13 November 2009.
Submissions
[12] Ms Douglas, for the TCFUA, submitted that the evidence showed that a majority of the employees wished to commence bargaining and that the conditions were met for a majority support determination to be made. Ms Douglas submitted that the petition of the employees should be sufficient to satisfy the tribunal that the majority of employees wished to bargain. 2 The petition is also supported by the vote of employees at the shift meetings. The union has been involved on the site for a long time and had a longstanding working relationship with Nylex. It is not necessary to show that the employees themselves have approached management about bargaining.
[13] Mr Stooke, for the employer, submitted that the Tribunal should not accept the union’s evidence as sufficient to establish that the majority of employees wished to bargain. The petition was not produced in appropriate languages and it is not clear that the employees knew what they were signing. They were approached on a one-by-one basis. They were not given the information and then allowed to vote in a secret ballot.
[14] Second, there has not been any discussion between the employer and the employees to suggest that the employees seek to negotiate an agreement. The only approach has been through correspondence from the union.
[15] It is not reasonable to make a majority support determination in this matter other than through a properly constituted ballot under the auspices of the Australian Electoral Commission. Mr Stooke referred to AMWU v Cochlear. 3
Conclusions
[16] Fair Work Australia must make a majority support determination in relation to a proposed single-interest enterprise agreement if it is satisfied of certain things. I am satisfied in this matter that the application is properly made.
[17] Following the hearing I requested that the employer provide a list of all of the production employees at the site. A list of 45 names was produced. By comparing this with the names on the petition submitted by the union I am satisfied that 34 production employees have signed a petition declaring their wish to collectively bargain with the employer for an enterprise agreement.
[18] I have given consideration to the issue of the non-English speaking background of a number of these employees. The evidence was that the employer had not circulated any documents to employees in a language other than English. I also note that from my experience it is common for bi-lingual employees to translate information for other employees from the same language group.
[19] I am therefore satisfied that a majority of the production employees engaged by the company at the time of the hearing and who would be covered by a proposed agreement want to bargain with their employer.
[20] Further I am also satisfied that the employer has not yet agreed to bargain.
[21] The group of employees to be covered by this determination are the production employees whose work is within the eligibility rules of the TCFUA and who were previously covered by the Nylex Industrial Products Pty Ltd (Kennon) – TCFUA Certified Agreement 2005.
[22] There are also some maintenance employees on the site who are represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
[23] They did not participate in the shift meetings or the petition. They were previously covered by a separate agreement with Nylex. There is no movement of employees between the two groups (i.e. maintenance and production). They are not covered by this determination.
[24] I am satisfied that the group who will be covered by this determination and therefore by any agreement, has been fairly chosen.
[25] Further I am satisfied that it is reasonable in all the circumstances to make the determination.
COMMISSIONER
Appearances:
K. Douglas with J. Kruschel for the Textile, Clothing and Footwear Union of Australia.
B. Stooke for Kennon Auto Pty Ltd.
G. Arnett for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
Hearing details:
2009.
Melbourne:
November 24.
1 Nylex Industrial Products Pty Ltd (Kennon) – TCFUA Certified Agreement 2005 [AG847035 PR969330].
2 AMWU v Kinkaid Pty Ltd t/as Cadillac Printing[2009] FWA 1123.
3 AMWU v Cochlear [2009] FWA 125.
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