Transport Workers’ Union of AustraliavJJ Richards and Sons Pty Ltd
[2012] FWA 5609
•2 JULY 2012
[2012] FWA 5609 |
|
DETERMINATION |
Fair Work Act 2009
s.236—Majority support determination
Transport Workers’ Union of Australia
v
JJ Richards & Sons Pty Ltd
(B2012/876)
COMMISSIONER HARRISON | SYDNEY, 2 JULY 2012 |
Bargaining - majority support determination.
[1] On 12 June 2012 the Transport Workers’ Union of Australia (TWU) applied for a majority support determination pursuant to s.236 of the Fair Work Act (the Act).
[2] It is appropriate to set out the provisions of ss.236 and 237 in full:
“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 JJ Richards & Sons Pty Ltd, 2 Grant Street, Cleveland, Queensland 4163. The employees to be covered by the agreement are those employed by JJ Richards & Sons Pty Ltd (JJR) at the Stapylton Waste Transfer Station.
[4] The application was heard in Brisbane on 29 July 2012 and at the conclusion of proceedings I gave an extempore decision granting the application.
[5] The TWU provided correspondence forwarded to JJR on 31 May 2012 advising it had consulted with employees at the Stapylton Transfer Station and that they wished to negotiate an enterprise agreement.
[6] On 8 June 2012 JJR replied to the TWU advising it declined to enter into discussions because it believed that the award, legislative protections and individual benefits afforded by it were sufficient. JJR further advised it had no reason to believe that a majority of the employees wanted to engage in bargaining.
[7] At the hearing the TWU tendered on a confidential basis an original copy of a petition signed and dated by 16 of the 17 employees who will be covered by the proposed agreement.
[8] Witness evidence in support of the application by the TWU was given by Mr Michael Ehlert, a waste truck driver employed by JJR at the Stapylton Transfer Station.
[9] It was Mr Ehlet’s evidence that he circulated a petition provided by the TWU to fellow employees. The petition was headed as follows:
“APPLICATION FOR A MAJORITY SUPPORT DETERMINATION JJ RICHARDS & SONES PTY LTD - STAPYLTON TRANSFER STATION
The TWU has requested that JJ Richards & Sons Pty Ltd (“JJR”) agree to commence bargaining for an enterprise agreement to cover truck drivers working from the Stapylton Transfer Station. In the event that JJR refuses to agree to bargain for an enterprise agreement the TWU intends to apply to Fair Work Australia for a Majority Support Determination pursuant to section 236 of the Fair Work Act 2009. A Majority Support Determination is an order from Fair Work Australia that requires an employer to initiate bargaining to an enterprise agreement.
The TWU can only obtain a Majority Support Determination if a majority of employees who will be covered by an agreement will cover truck drivers who work from the Stapylton Transfer Station.
To indicate that you wish to bargain for an enterprise agreement please sign below.”
[10] JJR did not cross examine Mr Ehlert or formally oppose the application.
[11] At the conclusion of the evidence and submissions I stated that I was satisfied as to the veracity of the petition.
[12] I further stated that I was satisfied the jurisdictional requirements as set out in s.237(2)(a), (b), (c) & (d) had been met.
[13] Pursuant to s.273(3) of the Act I determine that a majority of employees of JJ Richards & Sons Pty Ltd, employed at Stapylton, Queensland, want to bargain with JJ Richards & Sons Pty Ltd an agreement which will apply to them.
[14] This determination will come into force on and from 2 July 2012.
COMMISSIONER
Appearances:
M. Cerrato and M. Ehlert for the Transport Workers’ Union of Australia.
K. Tierney for JJ Richards & Sons Pty Ltd.
Hearing details:
2012.
Brisbane:
June 29.
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