[2012] FWA 7484 |
|
DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Australasian Meat Industry Employees Union, The
v
Somerville Retail Services
(B2012/1429)
COMMISSIONER ROE |
MELBOURNE, 30 AUGUST 2012 |
Application for a 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 Australasian Meat Industry Employees Union (AMIEU).
[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 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 proposed enterprise agreement in respect of which the declaration is sought is Somerville Retail Services Pty Ltd (Somerville). The employees who would be covered by the proposed agreement are those employees who are employed to work in, or in connection with, the meat processing establishment at the employers’ premises at Somerville Retail Services Pty Ltd and who would be covered by the Meat Industry Award 2010. The AMIEU asserts that it is a bargaining representative for at least one of the relevant employees.
[4] The matter was heard on 2 and 30 August 2012. The AMIEU was represented by Mr C Buckley with Mr J Jones and Mr B Chalkley. Somerville was represented by Mr S Selleck, who was given leave to appear, with Mr P Simmons.
[5] At the initial hearing it was established that Somerville had not agreed to or initiated bargaining. I indicated that I was satisfied that the group of employees to be covered by the proposed agreement was fairly chosen and that, subject to the questions of the AMIEU’s status as a bargaining representative and whether there was majority support, it was reasonable in all of the circumstances to make the determination.
[6] The AMIEU provided two affidavits from Mr Jarrod Jones, a Union organiser, which satisfied me that it is a bargaining representative for at least one relevant employee. Somerville also provided an affidavit from Mr Paul Simmons, Human Resources Manager.
[7] At the initial hearing I had indicated that the method that I considered appropriate to establish whether a majority of employees wanted to bargain was to compare the petitions provided by the AMIEU with the list of employees provided by Somerville. Two petitions were provided to me by the AMIEU and a spreadsheet of employees was provided by Somerville.
[8] That comparison established that at least 127 of the 245 employees on Somerville’s list had signed the AMIEU petition. That is a majority. A spreadsheet of the comparison is attached. It is possible that the additional employees on the petition whose names could not be matched also support bargaining. Some of those employees may be able to be matched with the provision of additional information.
[9] 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.
COMMISSIONER
Appearances:
Mr C Buckley with Mr J Jones and Mr B Chalkley for the AMIEU.
Mr S Selleck with Mr P Simmons for the Respondent.
Hearing details:
2012
Melbourne
August 2 & 30
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Attachment