[2016] FWC 3739

Fair Work Act 2009_

s.236 - Majority support determination

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Top Cut Foods Pty Ltd - 20 Gilbertson Rd Laverton North Victoria.

[1] On 23 May 2016 the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) applied pursuant to section 236 of the Fair Work Act 2009 (the Act) for a majority support determination.

[2] The Applicant seeks a determination that a majority of the employees engaged in classifications under the Food, Beverage and Tobacco Manufacturing Award 2010 and/or the Meat Industry Award 2010 who will be covered by a proposed single-enterprise agreement to be made with Top Cut Foods Pty Ltd at 20 Gilbertson Road, Laverton, Victoria (the Employer) want to bargain with their employer.

[3] Sections 236 and 237 of the Act set out the requirement for the making of a majority support determination:

(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.

(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

(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

(i) who are employed by the employer or employers at a time determined by FWA; 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.

(4) The determination comes into operation on the day on which it is made."

[4] The AMWU submits it and The Australasian Meat Industry Employees Union (AMIEU) have asked the Employer to agree to enter into bargaining for a new agreement and the Employer has refused.

[5] The AMWU filed 90 forms signed by employees of the Employer on either 5 May or 2 June 2016, which state that those employees want to bargain for a new enterprise agreement with the Employer and that they want the AMWU and AMIEU to negotiate on their behalf for an agreement.

[6] On 3 June 2016 I wrote to the Employer and advised that pursuant to s.237(2)(a)(i)

I determined that the relevant date was 5 May 2016.

[7] The Employer filed a list of 156 employees as at 5 May 2016 who would be covered by the proposed enterprise agreement.

[8] I have examined all of the material filed by the parties.

[9] On the basis of the material put before me, I am satisfied that the AMWU and AMIEU are bargaining representatives for the employees concerned. I am satisfied therefore that the AMWU is capable of making this application for a majority support determination.

[10] I am satisfied that a majority of the employees employed by the Employer who will be covered by the agreement want to bargain.

[11] I am satisfied that the Employer has not yet agreed to bargain or initiated bargaining for the agreement.

[10] I am satisfied that the group of employees are distinct within the meaning of s.237(3A) and I accept that they have been fairly chosen as required by s.237(2)(c) of the Act.

[12] Given that all of the requirements of s.237(2) of the Act have been met, I am obliged to issue the determination in accordance with s.237(1). A determination will issue with this decision.

[13] As a result of the determination being issued, the Employer must now take all reasonable steps to issue a notice of employee representational rights to each relevant employee as required by sections 173 and 174 of the Act. I note that s.173(3) requires, in effect, that the notice be issued within 14 days of the determination being made.

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