The Australian Workers' Union v F. Laucke Pty Ltd T/A Laucke Mills

[2013] FWC 2735

[2013] FWC 2735

FAIR WORK COMMISSION

STATEMENT

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

The Australian Workers' Union
v
F. Laucke Pty Ltd T/A Laucke Mills
(B2013/75)

COMMISSIONER HAMPTON ADELAIDE, 3 MAY 2013

s.236 - Application for a majority support determination.

[1] The Australian Workers’ Union (AWU) has made an application pursuant to s.236 of the Fair Work Act 2009 seeking a majority support determination applying to F. Laucke Pty Ltd T/A Laucke Mills.

[2] Section 236 of the Act requires that the conditions of s.237 are met before a determination can be issued by the Commission. Those requirements are as follows:

“237 When the FWC must make a majority support determination

Majority support determination

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

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

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

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

[3] As a result of an earlier directions conference, it became apparent that the issue in dispute in this matter was limited to the question of whether a majority of relevant employees had supported an AWU petition seeking to commence bargaining for an enterprise agreement with Laucke Mills.

[4] Based upon materials subsequently provided to the Commission by each of the parties, I determined that on face value there was a majority (albeit a slim one) of relevant employees supporting the petitions at each of the potentially relevant points in time. This finding was provided to the parties via a Statement issued on 23 April 2013.

[5] Laucke Mills then, constructively in my view, informed the Commission that it had agreed to initiate bargaining and intended to issue the relevant Notice of Employee Representational Rights prescribed under the Act. It contended that the Commission should decline to issue the determination but grant liberty to apply.

[6] In that light, I foreshadowed to both parties that it appeared that a majority support determination could not be issued under s.237 of the Act. That is, at the time that the determination would be made, the requirements of s.237(2)(b) would not be satisfied.

[7] In that regard, I drew to the parties’ attention the Full Bench decision in Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd[2009] FWAFB 668 and to my observations on that decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Christie Tea Pty Ltd[2011] FWA 6956 at pars [32] and [33].

[8] The AWU has helpfully accepted the above observations and does not presently press for a determination to be issued in this matter.

[9] I have granted liberty to apply in the highly unlikely event that Laucke Mills does not meet its undertakings to initiate the bargaining process in accordance with the Act.

COMMISSIONER

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