Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil

(#P49_3917) Section 238 of the Fair Work Act 2009.

(#P56_4256) [2009] FWA 101, at para 26.

(#P111_11200) [2009] FWA 320.

(#P146_14671) Explanatory Memorandum, at item 985.

(#P207_18097) Explanatory Memorandum, at item r.165.

(#P225_21392) Item 978.

(#P244_26277) Appeal Transcript at para 13.

(#P253_28320) Appeal Book p. 86 (Exhibit C1).

(#P266_29901) Appeal Book, p. 88.

(#P271_31066) Appeal Book, p. 51 (Transcript at para 150).

(#P286_32375) Appeal Transcript at paras 83-84.

(#P291_32604) B2009/10456, decided in [2009] FWA 153.

(#P292_32804) Section 230(2).

(#P295_32872) B2009/10464, determined in [2009] FWA 320 and B2009/10701, hearing pending.

(#P296_33056) Section 238(1).

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[14] I am satisfied that the LHMU is a bargaining representative able to make the application pursuant to section 236(1) and that the application adequately identifies the proposed parties to the agreement.

(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."

[16] This section requires that Fair Work Australia must make a majority support determination provided certain preconditions are met. All these essential prerequisites for the making of a majority support determination need to be met to the satisfaction of Fair Work Australia.

[17] The actual determination itself is significant. The Act distinguishes between a majority support determination and the various other forms of orders available under this Part. The majority support determination is not an order, it is not an enforceable ruling and no penalty attaches to any contravention of the determination. This much is clear from the Act itself and is supported by the Explanatory Memorandum which states:

"976. There is no penalty for contravening a majority support determination. If FWA determines that there is majority support for collective bargaining and an employer still refuses to bargain, the employee bargaining representative may seek a bargaining order to require the employer to bargain."

[18] I am satisfied that the employee petition makes it clear that the majority of employees want to bargain.

[19] However, I am not satisfied that Coca-Cola has now refused to bargain. Notices of representational rights have been issued and the necessary negotiating meetings have now been arranged. It might be argued that these arrangements were belatedly undertaken, but nevertheless they have occurred.

[20] To the extent that certain groups of employees may have been excluded from these intended negotiations, I accept the undertaking given by Coca-Cola such that these groups of employees will be included in the negotiation process.

[21] Subsection 236(1) refers to a proposed agreement sought by a bargaining representative. It allows for a majority support determination on the basis that a majority of employees to be covered by that agreement want to bargain. Subsection 237(2)(b) requires a refusal to bargain relative to the agreement to cover those employees. I am unable to construe the references in sections 236 and 237 to "the agreement" as the basis for the granting of a majority support determination in this situation where, whilst there is an agreement to meet, there is no current consensus on the scope of the agreement. Such an approach appears contrary to the purpose of the provision and is inconsistent with the capacity to seek a binding scope order set out in section 238. In contrast, a majority support determination is not enforceable in its own right and appears to me to serve the function of facilitating the commencement of the negotiation process and provide a precursor for other, enforceable provisions should these be necessary. This appears to be consistent with the Explanatory Memorandum:

• The employer has not yet agreed to bargain, or initiated bargaining, for the agreement (paragraph 237(2)(b)). If bargaining has commenced in relation to a proposed enterprise agreement, the appropriate tool to resolve issues surrounding coverage are scope orders (or bargaining orders) and not majority support determinations. This does not prevent employees of the employer who are not covered by the proposed agreement from applying for a majority support determination in relation to an agreement that will cover them;"

[22] The negotiation process which the parties are about to commence has the capacity to resolve the disputed scope issue, and, if it does not do so, a scope order may be sought provided the conditions set out in section 238 are met.

[23] In this situation I do not consider that the circumstance described in subsection 237(2)(b) has been met. This finding precludes the making of a majority support determination.

[24] As a matter of completeness, I note that I am satisfied that the group of employees in respect of whom the majority support determination was sought were fairly chosen. I hasten to add that this does not preclude other potentially fair selections of employees.

[25] It is not necessary that I deal with subsection 237(2)(d) in these circumstances.

[26] I do not consider that the preconditions for the making of a majority support determination have, in the situation been met. On this basis the application must be refused.

J Love for the Liquor, Hospitality and Miscellaneous Union.

S Nachiappan for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

S Pisoni for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

L Perry counsel for Coca-Cola Amatil (Australia) Pty Ltd.

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