Transport Workers' Union of Australia v Re.Cycle (Sunshine Coast) Pty Ltd

[2024] FWC 2988

[2024] FWC 2988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Transport Workers’ Union of Australia
v

Re.Cycle (Sunshine Coast) Pty Ltd

(B2024/1324)

DEPUTY PRESIDENT LAKE BRISBANE, 29 OCTOBER 2024

Application for a majority support determination – application granted – determination made.

1. On 10 October 2024, the Transport Workers’ Union of Australia (the Applicant) applied to the Fair Work Commission (the Commission) seeking a majority support determination under s.236(1) of the Fair Work Act 2009 (Cth) (the Act). The Applicant is a bargaining representative of the group of workers employed by Re.Cycle (Sunshine Coast) Pty Ltd (the Respondent).  The Respondent has not commenced bargaining with the employees seeking the Determination.

1. Under s.236(2) of the Act, 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.

1. The Applicant initially noted the Employer as Re-Group Pty Ltd trading as Re.Cycle (Sunshine Coast) Pty Ltd. The Respondent objected to the application on the basis that the correct legal name of the Respondent is Re.Cycle (Sunshine Coast) Pty Ltd. During a conference with the parties held on 21 October 2024, the Applicant agreed to amend their Application to reflect the correct name of the employer. The amended application was received on 21 October 2024.

1. The Applicant’s application initially noted the employees covered as being all the employees of the Respondent. During a conference with the parties on 28 October 2024, the Applicant agreed that the Administration Officer and the Plant Manager will not be covered by the agreement. The Applicant submitted an amended application to my Chambers on 29 October 2024, noting that the Administration Officer and the Plant Manager will not be covered.

1. The Applicant is a bargaining representative of the employees who will be covered by the agreement and is entitled under its registered rules to represent the industrial interests of the employees in question.

1. The Application received on 29 October 2024 complies with the requirements of s.236 of the Act.

1. As a result, I must consider the criteria provided under s.237 of the Act which provides the following:

“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.”

1. Directions were issued to the parties on 14 October 2024 requesting the following:

·     If the Respondent wished to object, they should provide any objection by close of business 14 October 2024;

·     The Respondent was requested to provide a list of employees employed by Re.Cycle (Sunshine Coast) Pty Ltd; and

·     The Applicant was requested to provide an unredacted copy of the petition signed by the employees.

1. The Respondent sent an email objecting to the application on 15 October 2024. In the same email, the Respondent provided a confidential list of current employees. The Respondent requested that the objection be considered despite the late response. This request was granted.

1. The Respondent initially objected on a number of grounds. These objections were subsequently abandoned. During the conference on 21 October 2024, the Respondent advised that its objections had changed. The new objections were twofold:

1.   The Application notes the incorrect legal name of the Respondent; and

2.   The Respondent’s employees include linguistically diverse employees who may not have understood the petition they were signing.

1. During the conference, the Respondent indicated that it would need more time to take advice and to consider its position. I advised the parties that the Applicant should file an amended application correcting the Employer’s name and that a follow-up conference would be listed for 28 October 2024. An amended application was received from the Applicant on 21 October 2024.

1. During the conference on 28 October 2024, the Respondent advised that it would withdraw its objection regarding the linguistically diverse employees, as it had confirmed that only one employee has difficulties with written English.

1. The Respondent advised that it had 41 employees as at 28 October 2024. One of those employees is an Administration Officer and another is a Plant Manager. The parties agreed during the conference on 28 October 2024 that these employees would not be covered by the agreement. Therefore, the total number of employees who will be covered by the agreement is 39.

1. Upon assessing the unredacted copy of the petition submitted by the Applicant, I am satisfied that the majority of employees want to bargain in accordance with s.237(2)(a) of the Act. 22 out of the 39 employees covered by the proposed agreement have signed a petition seeking a majority support determination.

1. The Applicant submitted a statement from its organiser, Mr Shane Pierpoint, outlining the attempts made by Mr Pierpoint to initiate bargaining with the Respondent. At the date of this decision and on the information before me, I am satisfied that the employer has not yet agreed to bargain, and that the group of employees who will be covered by the agreement was fairly chosen.

1. As the above requirements have been met, I am satisfied that it is reasonable in all the circumstances to make a determination.

1. The Determination is issued separately in PR780680.

DEPUTY PRESIDENT

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