The Australian Workers' Union
[2012] FWA 8424
•3 OCTOBER 2012
[2012] FWA 8424 |
|
DECISION |
Fair Work Act 2009
s 236 - Application for a majority support determination
The Australian Workers' Union
(B2012/1624)
DEPUTY PRESIDENT SAMS | SYDNEY, 3 OCTOBER 2012 |
Application for a majority support determination - petition of employees - statutory requirements satisfied - determination made.
[1] The Australian Workers’ Union (the ‘Union’) has filed an application for a majority support determination, pursuant to s 236 of the Fair Work Act 2009 (the ‘Act’). The Union is seeking to negotiate an enterprise agreement on behalf of employees employed by Spotless Group Limited (‘Spotless’) employed in the canteen at the Caltex Kurnell Refinery in New South Wales. The employees are presently covered by the Hospitality Industry (General) Award 2010.
[2] The statutory provisions governing this application are found at ss 236 and 237, of the Act, as follows:
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] At a hearing of the application on 27 September 2012, Mr V Falconer appeared for the Union. There was no appearance by, or on behalf of Spotless; although I am satisfied that the Company had been served with the application and was aware of the hearing of the matter.
[4] Mr Falconer provided evidence of written approaches to Spotless on 16 and 30 July 2012, seeking to commence negotiations for an enterprise agreement. There was no response from Spotless.
[5] In later emails and phone conversations between Mr Falconer and Mr M Mullins, the Company’s Senior Workplace Advisor, Mr Mullins made it clear that Spotless did not wish to enter into an enterprise agreement with the Union.
[6] Mr Falconer submitted that the group of employees who will be covered by the agreement were fairly chosen and that Spotless’ operations are operationally, organisationally and geographically distinct. Given that the employees proposed to be covered by the agreement are engaged in providing food and beverage services at the refinery, I am satisfied that Mr Falconer’s submissions as to those requirements of the Act should be accepted.
[7] Mr Falconer further submitted that the employees have expressed a desire to be covered by an enterprise agreement and for the Union to represent them. On 28 August, 2012 a majority of the employees signed a petition in the following terms:
“Petition
We, the undersigned employees of Spotless Group Limited, employed at the Caltex Kurnell Refinery, under the terms and conditions of the Hospitality Industry (General) Award 2010, declare that we seek to negotiate an Enterprise Agreement with the employer. The employer, Spotless Group Limited, has refused to negotiate any instrument. That refusal was conveyed to us by Mr. M. Mullins, Spotless Senior Workplace Advisor. In accordance with Section 236, of the Fair Work Act 2009, we seek that Orders be issued and the application for a Majority Support Determination be made. Further we endorse the Australian Workers’ Union act as our Bargaining Agent.”
[8] Finally, Mr Falconer noted that there was an imperative to have an enterprise agreement to cover the employees, in that Caltex Australia announced, on 26 July 2012, the progressive closure of the refinery over two years, with a reduction of positions from 430 to less than 100. He put that an agreement was necessary to ensure the protection of the employees’ future employment. He also raised concerns as to the employees’ current wages and conditions of employment.
CONSIDERATION
[9] There is really only one issue that requires a few brief observations. It concerns the appropriateness of a petition as a means of evaluating the intentions of the employees. In Automotive Food, Metals, Engineering, Printing and Kindred Industries Union v Kinkaid Pty Ltd T/A Cadillac Printing[2009] FWA 1123 O’Callaghan SDP said:
“It is conceivable that there may be circumstances where a petition could not be relied upon as an appropriate device to determine majority support for bargaining. If, for instance, there was some evidence that the petition had been falsely derived or that the signatures had been achieved by duress, an alternative means of establishing employee views would need to be considered.”
[10] In The Australian Workers’ Union v Bluescope Steel Limited T/A Bluescope Lysaght[2010] FWA 874 Harrison C accepted an employee petition as being “an appropriate method to establish that a majority of employees wish to bargain....” He added:
“I have considered the decisions of the single members so referred. As I stated during these proceedings, each application for a determination stands on its own. There can be circumstances where for a variety of reasons a secret ballot is the appropriate course to ascertain the views of the employees or where a petition or other method could be found to be an appropriate method to gauge the employees’ wishes.”
[11] The petition signed by a majority of the employees ([7] above) is clear and unambiguous. There is no evidence that the petition is anything but a genuine reflection of the employees’ wishes. There is no evidence that the employees were pressured or under duress to sign the petition.
[12] I am satisfied that the Union is a bargaining representative for the employees concerned and that it is entitled to represent the industrial interests of the majority of employees who will be covered by the proposed agreement. The application is competantly before Fair Work Australia (FWA) in that it specifies the employer and the employees who will be covered by the proposed agreement.
[13] In addition, I find that Spotless has not yet agreed to bargain and has not initiated bargaining for the proposed agreement. As I am satisfied that the application is competently before Fair Work Australia (FWA) and that all of the statutory requirements relevant to the making of a majority support determination have been met, FWA must make the determination. At the conclusion of the hearing on 27 September 2012 I announced my intention to do so, effective from that day. These are my reasons for doing so. The determination is issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
V Falconer for the Australian Workers’ Union.
Hearing details:
2012
Sydney:
September 27.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR529741>
1
2
0