The Australian Workers' Union v Flocast Australia Pty Ltd

[2010] FWA 308

[2010] FWA 308

FAIR WORK AUSTRALIA

DECISION AND DETERMINATION

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

The Australian Workers' Union
v
Flocast Australia Pty Ltd
(B2009/53)

COMMISSIONER BLAIR MELBOURNE, 21 JANUARY 2010

Application for a Majority support determination.

[1] This is an application for a majority support determination by the Australian Workers’ Union (the Union) pursuant to s.236 of the Fair Work Act 2009 (the Act). The application seeks a declaration that a majority of employees of Flocast Australia Pty Ltd (the Company) who will be covered by an agreement want to bargain.

[2] The provisions of s.236 and s.237 of the Act are 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] The Union presented a petition as a means of indicating that the majority of employees in the store foundry and maintenance areas want to bargain with the Company for an enterprise agreement.

[4] The Company, for its part, want a secret ballot to be conducted in order for the employees to express their views in private.

[5] Having considered the submissions of the parties the Tribunal is of the opinion that the petition is a proper reflection of the employees’ desire to bargain with the Company and has no cause to doubt its accuracy or veracity.

[6] I am satisfied the jurisdictional requirements as set out in s.237(2)(a), (b), (c) and (d) have been met.

[7] Pursuant to s.237(3) of the Act I determine that a majority of employees of Flocast Australia Pty Ltd employed at 105 Newlands Road, Coburg, Vic and who are covered by the Metal, Engineering and Associated Industries Award 1998 , want to bargain with Flocast Australia Pty Ltd an agreement which will apply to them.

[8] This determination will come into force on and from 20 January 2009.

COMMISSIONER

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