Fair Work Act 2009_

s.236 - Application for a majority support determination

Application for a majority support determination.

[1] The NUW has applied for a majority support determination. The parties agree, and I am satisfied, that the application has been properly made (Section 236 of the Fair Work Act 2009 (the Act)), and that the employer who will be covered by the proposed agreement, Metcash Food and Grocery Pty Ltd, has not agreed to bargain (Section 237(2)(b) of the Act).

[2] I am also satisfied and it is not disputed that the group of employees who will be covered by the agreement is fairly chosen (Section 237(2)(c) of the Act). In reaching this conclusion I am satisfied that the warehousing/distribution employees of Metcash at Shed M Pooraka Market are geographically distinct from other Metcash operations, and the other warehousing operations in Adelaide in particular. I am also satisfied that the group is operationally distinct in that the work at the Pooraka Market is confined to fresh food produce whilst the other Adelaide warehouse handles general groceries and other supermarket items. I am not aware of the extent to which the Pooraka Market Metcash operations are organisationally distinct but in the circumstances of this case it is not necessary to make a finding about that matter (Section 237(3A) of the Act). I am satisfied that there is nothing artificial about the selection of warehousing/distribution workers.

[3] The petitions were collected by an NUW organiser Mr Whenan between 20 February and 4 March 2015. Three signatures were collected by a Metcash employee. I have compared the petition to a list of employees provided by Metcash of the warehouse/distribution employees as at 2 March 2015. I reached the following conclusions about the petitions based upon that comparison and the parties had the opportunity to make submissions about those conclusions.

UNABLE TO BE CLEARLY READ OR FOUND ON EMPLOYER LIST

TOTAL NUMBER OF SEPARATE EMPLOYEES WHO SIGNED PETITION WHO ARE ALSO ON EMPLOYER LIST

[4] I am satisfied that 22 out of 35 workers signed the petition and that constitutes a clear majority of the workers who will be covered by the proposed agreement. I am satisfied that a majority of employees who are employed by Metcash as at 4 March 2015 and who will be covered by the proposed agreement want to bargain (Section 237(2)(a)).

[5] The two primary matters which are disputed and which must be determined are:

● Mr Johnson for Metcash raised some doubts as to whether or not those who signed the petition did so in an informed manner. In particular Mr Johnson suggested that a number of employees may have English as a second language and may not have fully understood the petition. Mr Johnson also suggested that employees were shown the agreement which applies to the Metcash Kidman Park warehouse and he suggested that employees may have been told that they would achieve the rates and conditions in that agreement if they signed the petition. For this reason Mr Johnson suggests that it would not be reasonable in all the circumstances to make the determination (Section 237(2)(d) of the Act).

● Mr Johnson for Metcash argues that it would not be reasonable to make the determination (Section 237(2)(d) of the Act) because the operations at Pooraka compete with a number of other businesses and the fresh food wholesale business is a low margin business. An enterprise agreement could adversely affect the competitive position of the company in circumstances where the NUW is not seeking to bargain with the competitors.

[6] Mr Whenan gave evidence about the process he utilised to explain the issues to the employees prior to the signing of the petition. He spoke to the employees individually except for two groups of 3 or 4 workers. He gave evidence that he was satisfied that all the employees understood what the petition and collective bargaining meant despite the fact that some may have had English as a second language. Mr Whenan gave evidence that he did distribute the Kidman Park agreement but he said that the employees were not seeking the same rates and conditions as in the Kidman Park agreement. Mr Whenan said that the primary issue of interest from the Kidman Park agreement was the existence of a task based classification structure or career path. Mr Whenan said that he explained to workers that if the petition was accepted the employer would have to bargain in good faith. He did not suggest that a particular outcome would necessarily be achieved through bargaining.

[7] I am satisfied that Mr Whenan approached his role in a professional manner. I am not satisfied that there is any basis to conclude that the petition is not a valid expression of the wishes of a majority of the employees.

[8] Mr Whenan gave evidence that the NUW is pursuing bargaining with at least two other operators at the Pooraka markets. Mr Whenan gave evidence that there are a large number of employers who operate from the Pooraka markets. The legislation encourages collective bargaining. Even if the NUW was not pursuing bargaining with other competitors at the time it was seeking to bargain with Metcash I am not satisfied that would make it unreasonable to issue a majority support determination. A majority support determination provides the employees with a right to bargain it does not require the employer to make any particular concessions or to reach an agreement. The outcome of bargaining may impact upon the competitive position of a firm both positively and negatively depending upon the circumstances. I am not satisfied that it is consistent with the legislative intent or in the public interest to stop bargaining commencing because there are fears about the outcome of the bargaining.

[9] I am satisfied that it is reasonable in all the circumstances to make the determination.

[10] Consequently I am satisfied that a majority of the relevant employees wish to bargain for an enterprise agreement as at 4 March 2015. I am also satisfied that each of paragraphs (b), (c) and (d) of Section 237(2) of the Act have been made out. As a result, pursuant to Section 237(1) I must make a majority support determination which will operate from the date of this decision. It is issued separately.

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