The Australian Workers' Union v Fonterra Australia Pty Ltd

[2015] FWC 1568

[2015] FWC 1568

FAIR WORK COMMISSION

DECISION

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

The Australian Workers' Union
v
Fonterra Australia Pty Ltd
(B2015/303)

DEPUTY PRESIDENT WELLS HOBART, 6 MARCH 2015

Application for a majority support determination

[1] This decision concerns an application for a majority support determination pursuant to section 236 of the Fair Work Act 2009 (the Act). The application was made by The Australian Workers’ Union (AWU).

[2] The relevant provisions of the Act, sections 236 and 237, 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 employer to be covered by the proposed enterprise agreement in respect of which the declaration is sought is Fonterra Australia Pty Ltd (Fonterra). The employees who would be covered by the proposed agreement are those employees who are employed to work in, or in connection with the manufacturing, packaging, warehousing and maintenance functions at Tamar Valley Dairy and who would be covered by the Food, Beverage and Tobacco Manufacturing Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010. The AWU asserts that it is a bargaining representative for at least one of the relevant employees.

[4] The matter was heard on 6 March 2015. The AWU was represented by Mr R Flanagan. Fonterra was represented by Mr D Ritchie and Ms E Sutton.

[5] At the hearing it was established that Fonterra had not agreed to bargain and that whilst it was not opposed to initiate bargaining with the AWU in the terms sought under this application, it required the FWC to verify that a majority of employees to be covered by the proposed agreed did in fact support bargaining. I indicated that I was satisfied that the group of employees to be covered by the proposed agreement was fairly chosen, that the AWU were a bargaining representative and that if, on the evidence, there was majority support, it was reasonable in all of the circumstances to make the determination.

[6] The AWU provided a Statement of Evidence from Mr Robert Flanagan, a Union organiser, which satisfied me that it is a bargaining representative for at least one relevant employee.

[7] At the hearing the AWU provided a petition which stated “We the undersigned employees of Fonterra Australia employed at the Tamar Valley Dairy wish to commence bargaining for an Enterprise Agreement”. The petition contained 67 names and signatures. Fonterra provided a spreadsheet of employees directly employed by it, containing the names of 105 employees.

[8] A comparison by me established that at least 53 of the 105 employees on Fonterra’s list had signed the AWU petition. That is a majority. There were two employees who had signed the petition that were not identified as employees on the spreadsheet provided by Fonterra. It is possible that the additional employees on the petition whose names could not be matched also support bargaining and those employees may be able to be matched with the provision of additional information, however they have not be included for the purposes of determining the majority of employees support bargaining for an enterprise agreement.

[9] Consequently I am satisfied that a majority of the relevant employees wish to bargain for an enterprise agreement. I am also satisfied that each of paragraphs (b), (c) and (d) of section 237(2) of the Act has been made out. As a result, pursuant to section 237(1) I must make a majority support determination. It is issued separately.

DEPUTY PRESIDENT

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