The Australian Workers' Union v Sneddon & Kingston Plastics Pty Ltd

[2010] FWA 9043

[2010] FWA 9043

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.236—Majority support determination

The Australian Workers’ Union
v
Sneddon & Kingston Plastics Pty Ltd
(B2010/284)

COMMISSIONER RYAN MELBOURNE, 25 NOVEMBER 2010

Bargaining – majority support determination.

[1] This is an application for a majority support determination by The Australian Workers’ Union (AWU) pursuant to s.236 of the Fair Work Act 2009 (the Act). The application seeks a declaration that a majority of employees of Sneddon & Kingston Plastics Pty Ltd (Sneddon & Kingston) 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 employer to be covered by the agreement is Sneddon & Kingston Plastics Pty Ltd (the Employer) in respect of the employees of the Employer who perform work in production, maintenance, warehouse and transport rolesat the Cope Street, Preston, Victoria workplace of the Employer (Eligible Employees).

[4] On 11 November 2010 Fair Work Australia conducted a conference of the parties by telephone. At the conclusion of the conference the Employer was directed to file with Fair Work Australia a list of all its employees indicating each employee’s position title. The AWU was directed to file the petition signed by employees and on which it relied.

[5] The list of employees filed by the Employer indicated it had a total of 45 employees with 11 of those employees holding management or administrative positions. On that basis I find that there are 34 Eligible Employees as described in clause 2.2 of the application

[6] The AWU petition was signed by 19 employees and contained the following preamble:

“We, the undersigned employees of Sneddon & Kingston Plastics Pty Ltd in the State of Victoria, hereby signify that we wish to bargain with our employer in relation to a proposed enterprise agreement and that we wish to appoint The Australian Workers’ Union as our bargaining representative.”

[7] On checking the list of names on the AWU petition against the list of employees, it was clear that one employee who signed the petition was not an Eligible Employee. This meant that 18 Eligible Employees signed the petition. 18 is a majority of 34.

[8] I am satisfied that the group of employees who will be covered by the agreement was fairly chosen on the basis that the group is limited to employees at a specific geographic location, namely the Employer’s premises at Cope Street, Preston, and that the group is further limited to employees engaged in production, maintenance, warehouse and transport roles and excluding management and administrative employees.

[9] Pursuant to s.237(3) of the Act I determine that a majority of Eligible Employees of Sneddon & Kingston want to bargain with Sneddon & Kingston for an agreement which will apply to them and therefore a Determination [PR504294] has been issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR504295>