The Australian Workers' Union v Unity Mining Limited

[2015] FWC 1580

[2015] FWC 1580

FAIR WORK COMMISSION

DECISION

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

The Australian Workers' Union
v
Unity Mining Limited
(B2015/287)

DEPUTY PRESIDENT WELLS HOBART, 12 MARCH 2015

Application for 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 FWC 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 FWC must make a majority support determination

Majority support determination

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

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

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

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, 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] The employer to be covered by the proposed enterprise agreement in respect of which the declaration is sought is Unity Mining Limited (Unity). The employees who would be covered by the proposed agreement are those employees who are engaged in or in connection with the mining and processing occupations at the Henty Mine as described in clause 7.4 of the Henty Gold Limited Enterprise Agreement 2010 and who would be covered by the Mining Industry 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. Unity was represented by Mr W Fitzgerald from Australian Mines and Metals Association (AMMA). Mr S Jones and Ms A Ling for Unity also entered an appearance by telephone.

[5] At the hearing it was established that Unity had not agreed to bargain as the mining operations were ceasing at the end of 2015 when the mine would be placed into a state of care and maintenance. Following discussions in conference, Unity confirmed that, it was not opposed to bargaining with the AWU subject to FWC verifying that a majority of employees to be covered by the proposed agreed did in fact support bargaining. Unity undertook to provide FWC, in a timely fashion, with a list of its employees who would be covered by the proposed agreement.

[6] 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.

[7] The AWU provided a Statement of Evidence from Mr Robert Flanagan, 1 a Union organiser, an extract of the AWU rules denoting membership coverage2 and a list of AWU members who are employees of Unity and who would be covered by the proposed agreement.3 The Respondent did not seek to cross-examine Mr Flanagan on his evidence. The documentation provided by the AWU has satisfied me that it is a bargaining representative for at least one relevant employee.

[8] At the hearing the AWU provided a petition 4 which stated “I, the undersigned (a) hereby confirm that I want to bargain for an enterprise agreement; and (b) request that The Australian Workers Union, Tasmania Branch initiate bargaining as my bargaining agent for an Enterprise agreement with Unity Mining Limited covering employees who are engaged in or in connection with the mining and processing occupations at the Henty Mine as described in clause 7.4 of the Henty Gold Limited Enterprise Agreement 2010”. The petition contained 46 names and signatures. Unity provided a spreadsheet of employees directly employed by it, containing the names of 56 employees. The AWU sought that the list of AWU members provided and the petition be kept confidential to FWC and Unity sought that the list of employees it provided also be treated in confidence by FWC. Neither party objected to such course. Therefore the documents were accepted into evidence on that basis.

[9] A comparison by me established that at least 29 of the 56 employees on Unity’s list had signed the AWU petition. That is a majority. There were three employees who had signed the petition that were not identified as employees on the spreadsheet provided by Unity. 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.

[10] 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

Appearances:

Mr R Flanagan, for the Applicant

Mr W Fitzgerald (AMMA), for the Respondent

Mr S Jones, for the Respondent

Ms A Ling, for the Respondent

Hearing details:

Hobart

2015

6 March

 1   Exhibit A4 – Witness Statement of Robert Flanagan

 2   Exhibit A1 – AWU Rule 5 – Eligibility for Membership

 3   Exhibit A2 – AWU Membership list

 4   Exhibit A3 – Petition

Printed by authority of the Commonwealth Government Printer

<Price code A, PR561736>