Union of Christmas Island Workers

[2011] FWA 5099

[2011] FWA 5099

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.236—Majority support determination

Union of Christmas Island Workers
(B2011/107)

COMMISSIONER WILLIAMS PERTH, 4 AUGUST 2011

Application for a majority support determination.

[1] This decision formalises the Reasons for Decision given on transcript at the conclusion of the hearing of this matter on 27 July 2011.

[2] This matter involves an application lodged under section 236 of the Fair Work Act 2009 by the Union of Christmas Island Workers (UCIW). The Respondent to the application is Resolve FM Pty Ltd (Resolve FM).

[3] Resolve FM provide facility and property management services to their clients.

[4] The UCIW application is in regard to employees of Resolve FM working at the North West Point Detention Centre on Christmas Island. Those employees are variously involved in maintenance, cleaning and gardening work. The application seeks the making of a majority support determination.

[5] Resolve FM are represented by the Australian Industry Group (AiG).

[6] The application was the subject of two telephone conferences and subsequent private discussions between the parties.

[7] On 24 June 2011 the AiG, on behalf of Resolve FM , advised the Tribunal in writing that the employer’s position was unchanged and that it would oppose the application on the grounds that the group of employees is not a fairly chosen group, as it is required to be by s.237 (2) (c) of the Act.

[8] Consequently the matter was then listed for a hearing on Christmas Island to be held on Wednesday, 27 July 2011.

[9] At 9:30 AM on Tuesday 26 July 2011, whilst the Tribunal was in transit to Christmas Island, Resolve FM sent correspondence by e-mail from Mr Mark Ghilardi, the National Business Services Manager, which advised that:

“The company’s position in relation to the above application is that it is a matter for Fair Work Australia’s discretion as to the compliance with section 237 of the Fair Work Act 2009 (Cth) in determining the matter.

Should Fair Work Australia be satisfied with matters identified in section 237 (2) have been made out, then the company does not oppose the Tribunal’s discretion in the issuing of the majority support determination.”

[10] At the hearing the UCIW was represented by Ms Kaye Bernard, General Secretary.

[11] There was no appearance by Resolve FM nor by their representative AiG.

Consideration

[12] Section 237 of the Act details those matters about which the Tribunal must be satisfied before it can make a majority support determination.

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.

[13] Ms Bernard made submissions in support of the application and given that these statements from the bar table are uncontested I will rely upon these submissions as the evidence in this matter.

[14] The evidence is that there are approximately 40 employees employed by Resolve FM who would be covered by the proposed agreement. Of those employees 31 signed a statement on 25 May 2011 that they want to bargain with Resolve FM to make a single enterprise agreement. I am therefore satisfied that as at 25 May 2011 a majority of employees employed by Resolve FM who would be covered by the agreement want to bargain.

[15] The employer, Resolve FM, did in writing in early May expressly advise the UCIW that they do not want to bargain for a new enterprise agreement and did not consider that bargaining had commenced. There is no evidence to suggest the employer’s position has changed. I am satisfied then that the employer that would be covered by the agreement has not yet agreed to bargain nor have they initiated bargaining for an agreement.

[16] The agreement will not cover all of the employees of Resolve FM. The group of employees that would be covered by an agreement are those employees working at the North West Point Detention Centre on Christmas Island.

[17] Whatever the Respondent’s view of this issue they have chosen not to appear in these proceedings nor to be represented at these proceedings and so they have not pressed their previously stated objection that the group of employees was not fairly chosen.

[18] In any event because the agreement would only apply to employees working on Christmas Island the group of employees who would be covered is self-evidently geographically distinct.

[19] Taking the fact that the group of employees is geographically distinct into account I am satisfied that the group of employees who will be covered by the agreement was fairly chosen.

[20] I am satisfied that in all the circumstances it is reasonable to make the determination sought by the UCIW in this application.

[21] In summary having considered those matters set out in section 237 (2) of the Act and being satisfied of each of these I must now make a majority support determination in relation to the proposed single enterprise agreement.

[22] The majority support determination as sought by the applicant was issued on 29 July 2011 [PR512698].

COMMISSIONER

Appearances:

Ms K Bernard for the applicant.

Hearing details:

2011

Christmas Island

July 27

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