United Workers' Union

[2020] FWC 501

[2020] FWC 501

FAIR WORK COMMISSION

DECISION

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

United Workers' Union
(B2019/1382)

DEPUTY PRESIDENT LAKE BRISBANE, 31 JANUARY 2020

Application for a majority support determination.

[1] On 6 December 2019 the United Workers’ Union (Applicant) applied for a majority support determination under s.236 of the Fair Work Act 2009 (Act)in relation to the employees of Vindex Pty Ltd (Employer).

[2] In the Form F30 application, the Applicant asserted that the Employer indicated at a meeting that it would prefer to pursue a process outside of Agreement making for employees employed in work relating to the manufacturing of plastic pipes. In asserting this position, the Applicant said the Employer would place an alternative proposal “within 2 weeks”. Further to this, the Applicant stated it contacted the Employer seeking information on their proposal and received no reply. The Applicant raised issue with this, as it had been 3 weeks without a reply from the Employer in relation to its alternative proposal.

[3] On 20 December 2019, through my Associate, I issued the following directions to the parties:

“The Deputy President directs that the parties file and serve material regarding this matter as follows:

1. The Applicant is to file to chambers onlyan unredacted copy of the petition referred to at Part 2.4.1 of its application, by no later than 4:00pm on Tuesday, 24 December 2019.

2. The Applicant is to file to chambers and serve on the Respondent a copy of the petition referred to at Part 2.4.1 of its application redacting the names and signatures of employees included in the petition, by no later than 4:00pm on Tuesday, 24 December 2019.

3. The Employer is to file to chambers onlya list of employees engaged in work relating to manufacturing of plastic pipes who would be covered by a proposed Agreement, by no later than 4:00pm on Thursday 2 January 2020.

The Deputy President will analyse the material filed by both parties and will advise the parties if, on a preliminary basis, it appears that a majority of eligible employees have signed the petition.

Further, the Deputy President asks that by no later than 4:00pm on Thursday 2 January 2020 the Employer confirms whether it opposes the application in this matter and if so, files submissions setting out its reasons for opposing the application.”

[4] Both parties filed the required materials. Upon receiving the materials, I conducted an analysis to determine if a majority of eligible employees had signed the petition.

[5] In completing this analysis, I was satisfied that upon a comparison of signatures and names of employees on the petition against the list of employees provided by the Employer, I had determined that a majority of employees wanted to bargain for an enterprise agreement.

[6] After forming this view, I wrote to the parties asking for their views in relation to my preliminary determination. Further to this, I also sought the views of the Employer relation to its opposition of the application. The Employer, in an email dated 15 January 2020 indicated that it no longer opposed the application and did not advance an objection pursuant to s.237(2) of the Act.

Legislation

[7] Section 237 of the Act provides as follows:

“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.”

[8] I must make a majority support determination if an application has been made before the Commission and where it satisfies the criteria contained in s.237(2) of the Act. Further to this, s.236 of the Act relevantly provides:

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single enterprise agreement may apply to the 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.”

Consideration

[9] I am satisfied that the Applicant is a bargaining representative of the employees who will be covered by a proposed single enterprise agreement. I am also satisfied that the application specified the Employer to be covered and the employees who will be covered by the Agreement. I now turn to s.237(2) of the Act.

[10] The matters contained in ss.237(2)(a), (b), (c) and (d) are not dispute. It is evident, on the material provided that the Employer did not agree to bargain or initiated bargaining with respect of a proposed enterprise agreement. I also consider that the group of employees proposed to by covered by the agreement have been fairly chosen and that there are no circumstances that have been identified that would make it not reasonable to make the determination sought.

[11] I am satisfied on the basis of the list of employees provided by the Employer that there are 52 employees who will be covered by the proposed enterprise agreement. I am further satisfied that as a result of the petition by the Applicant, 32 of those employees want to bargain.

Conclusion

[12] I must make a majority support determination based on the satisfaction of the criteria in s.237(2) of the Act. A determination will issue with this Decision.

DEPUTY PRESIDENT

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