1
[2013] FWC 2786
DECISION
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)
v
Superpop Pty Ltd
(B2013/731)
COMMISSIONER GREGORY MELBOURNE, 7 MAY 2013
Bargaining - majority support determination.
[1] This matter concerns an application by the “Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’
Union (AMWU) pursuant to section 236 of the Fair Work Act 2009 (the Act) for a majority
support determination. It concerns employees employed by Superpop Pty Ltd (the Employer)
at its premises in Mount Waverley. The matter was first heard on 25 March 2013 and then
adjourned until 3 April to enable the Employer to respond. Mr Vroland appeared on behalf of
the AMWU and Mr Kondarovskis, the Managing Director of Superpop Pty Ltd, appeared on
behalf of the Employer.
[2] The application seeks a majority support determination confirming that a majority of
the employees intended to be covered by a proposed agreement want to bargain with the
Employer. The application is opposed by the Employer. Its objection particularly concerns the
nature of the evidence the AMWU seeks to rely upon to establish that a majority of
employees want to bargain with the Employer.
[3] The relevant legislative provisions are contained in section 236 and 237 of the Act.
Section 236 details what must be contained in any application for a majority support
determination and states as follows:
“(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.”i
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 2786
2
[4] Section 237 concerns, in particular, what the Commission must be satisfied about
before a declaration is made. It states as follows:
“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.”ii
[2013] FWC 2786
3
The Submissions and Evidence
[5] The AMWU submitted that the employees are employed as process workers, machine
operators, packers, store persons and maintenance workers and are covered by two awards,
namely the Food, Beverage and Tobacco Manufacturing Award 2010 and the Manufacturing
and Associated Industries and Occupations Award 2010.
[6] It tendered a document containing a list of the current members of the Union who are
employed by the Employer. It listed 12 names. It also indicated that one of those employees
no longer works for the Employer, having since been made redundant. It also tendered a copy
of a petition which stated at the heading of the document:
“We, as employees of Superpop and members of the Australian Manufacturing Workers
Union (AMWU), want the AMWU to represent us on all workplace issues and in
negotiations for an Enterprise Agreement.”iii
[7] Ms Vinh Yuen gave evidence in support of the application. She is employed by the
AMWU as a recruitment officer. She stated the petition was freely signed by the employees.
Some employees signed when she visited the workplace, whilst others signed when she
visited them at their homes. This was apparently because of reticence by some to be seen to
be publicly supporting the proposed action openly at the workplace. She also stated she was
confident the employees understood what it was they were signing and, in doing so, were
expressing a clear view in terms of their intentions.
[8] Mr Peter White, who is a recruiting organiser for the AMWU, also gave evidence in
support of the application. He visited the workplace to provide information and advice to the
employees about bargaining processes and the establishment of enterprise agreements. He
also believed the employees did have an understanding about what those processes involved.
[9] The AMWU tendered a copy of an email exchange between the Union and the
Employer. One email dated 4 March 2013 from the Managing Director, Mr Kondarovskis, to
Vinh Yuen indicated in part:
“We have never requested any negotiations or spoken to anyone about any workplace
agreements. We do not wish to bargain about anything in our workplace.”iv
[10] It continued to indicate:
“We have no intention of negotiating any workplace agreement.”v
[11] A further email from Mr Kondarovskis to Mr David Vroland of the AMWU, dated 22
March 2013, also indicated in part:
“Let me put on the record that we have not entered into any bargaining with anyone nor
do we wish to.”vi
[12] The AMWU also submitted that the group of employees who will be covered by the
agreement were “fairly chosen”.vii They involve those employees whose work is covered by
the classifications in the two awards referred to previously, and who are employed at the
Employer’s premises in Mount Waverley.
[2013] FWC 2786
4
[13] The AMWU submitted in conclusion it was reasonable in all the circumstances to
make the determination. It then made reference to various decisions of this Tribunal and its
predecessors, particularly concerning the use of petitions as evidence that a majority of the
employees involved want to bargain.
[14] It referred, firstly, to the decision in The Australian Workers Union v BlueScope Steel
Ltd trading as Blue Scope Lysaghtviii. It submitted that what occurred in that case was similar
to the present circumstances in that a petition had been prepared and signed by employees,
without evidence to suggest any contrary intention or desire by those involved. It referred, in
particular, to the statement by Commissioner Harrison in the following terms:
“In this matter the question put to the employees was simple and to the point. I have no
reason to doubt that the support for the proposition by way of a petition was not a
genuine and legitimate expression. There is no evidence to the contrary.”ix
[15] The AMWU next referred to the decision in Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union v Kinkaid Pty Ltd trading as Cadillac Printingx. It
referred in particular to paragraphs 11, 14 and 15 which state:
“Cadillac has put to me that the circumstances under which these employees’ signatures
were obtained were such that Fair Work Australia should require a secret ballot to
determine the employee position. Cadillac have identified concerns over the potential
for employees to be pressured into signing this petition.
...
In this case, despite the Cadillac concerns, there is no evidence which discredits the
standing of the petition.
Accordingly, I consider that the AMWU petition conducted between 22 and 24
September 2009 represents an appropriate means of establishing a majority employee
position. With one exception, all of the 23 employees who signed this petition are
employees of Cadillac and their signatures indicate a clear majority employee support
for the AMWU to represent them in negotiating an enterprise agreement with
Cadillac.”xi
[16] The AMWU also made reference to further decisions in support of its submission that
a petition signed by employees was an appropriate means to establish a majority want to
bargain for an agreement, but did not go to those decisions in detail. However, it is noted that
the decision of Commissioner Bissett, in particular, in National Union of Workers v
Corporate Express Pty Ltdxii also referred to the above decisions and stated:
“Absent any evidence to the contrary, I accept the petition as a true indication of the
wishes of the employees. There is no basis for me to conclude that employees did not
know what they were seeking in signing the petition. It is a legitimate tool in
establishing the wishes of the employees.”xiii
[2013] FWC 2786
5
[17] I also note the decision of Commissioner Lee in “Automotive, Food, Metals,
Engineering, Printing and Kindred Industries Union” known as the Australian
Manufacturing Workers’ Union (AMWU) v Edlyn Foods Pty Ltdxiv when he stated:
“Circumstances may arise where a petition cannot be relied upon as a means for Fair
Work Australia to determine whether or not there is majority support for bargaining.
One example may be duress or coercion of employees. Another example of a
circumstance where it would not be proper for Fair Work Australia to accept a petition
may be where the proposition that was put to employees was in some way confusing or
not clear. I have found that those circumstances did not arise in this case.”xv
[18] The Commissioner continued to indicate in that matter that the signed employee
petition presented an appropriate means of establishing a majority employee position.
[19] The AMWU accordingly submitted the Commission was now entitled to be satisfied
with the required matters in accordance with s.237(2) of the Act, and a majority support
determination should be made.
[20] The Employer indicated in its submissions it was particularly concerned about the
tactics used to obtain the signatures in the petition and believed that unfair tactics and duress
had been involved. It also questioned whether employees understood what they were being
asked to support prior to signing the petition. This was a particular concern because several
employees have limited English language speaking skills. It submitted the AMWU had taken
a considerable period of time to obtain the signatures on the petition indicating a reluctance to
sign by some employees. The Employer submitted in conclusion it was simply concerned to
make sure the outcome was, in its words, one that was “impartial” and involved “no
harassment” of the employees.xvi
[21] It accordingly proposed that the Commission determine that a ballot be conducted by
the Australian Electoral Commission to ensure employees had supported the decision to enter
into bargaining for an agreement, free from any undue pressure or harassment. However, it
did not provide any evidence in support of its submissions concerning employees being
harassed or pressured to sign the petition.
[22] The Employer also indicated that the total staff numbers were now 12, given that some
employees have recently been made redundant.
Consideration
[23] As indicated, section 237 of the Act requires that the Commission must be satisfied in
regard to various matters before a majority support determination is made.
[24] In that context I am satisfied, firstly, that the Employer proposed to be covered by the
agreement has not yet agreed to bargain. That is clear from the email exchange tendered in
evidence and from the submissions of the Employer in the proceedings.
[25] Secondly, I am satisfied that the group of employees who will be covered by the
agreement is fairly chosen. It is confined to employees at the Mount Waverley location
employed in the classifications covered by the Food, Beverage and Tobacco Manufacturing
Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010.
[2013] FWC 2786
6
[26] The one issue in contention concerns the use of a petition signed by employees as
evidence to support the requirement that a majority of employees intended to be covered by
the proposed agreement want to bargain. The Employer in its submissions made a number of
allegations about how those submissions were obtained, but provided no evidence in support.
The AMWU tendered the petition and also provided evidence from witnesses, indicating how
the signatures were obtained and that, in their view, the employees understood why the
petition was being signed and the nature of the process they were involved in.
[27] A number of decisions of this Tribunal and its predecessors have dealt with the
appropriateness of a signed employee petition as a method of satisfying the requirement that a
majority of employees intended to be covered by an agreement want to bargain. I have
already made reference to several of those decisions at an earlier point in this decision.
[28] I am satisfied, based on those decisions and the circumstances of the present matter,
that a petition signed by employees is an appropriate means to establish that a majority of
employees wish to bargain. No evidence has been presented in this matter to suggest it is not
an accurate reflection of that intention. I have also checked the list of names of the employees
and the list of those that have signed the petition. I am satisfied based on that comparison that
a majority of the employees support the decision to bargain for a proposed agreement.
[29] I am also satisfied the requirements of section 237 of the Act have been met,
including the requirement that it is reasonable in all the circumstances to make the
Determination. A Determination will accordingly be made and issued in conjunction with this
decision.
Appearances:
Mr D Vroland on behalf of the Applicant.
Mr J Kondarovskis on behalf of the Company.
Hearing details:
2013.
Melbourne:
25 March and 3 April.
Printed by authority of the Commonwealth Government Printer
Price code C, PR536313
ORK COMMISSION SEAL OF FAIR AUSTRALIA THE MMISSIONER
[2013] FWC 2786
7
i Fair Work Act 2009 (Cth) s.236.
ii Ibid at s.237.
iii Exhibit V3.
iv Exhibit V1.
v Ibid.
vi Ibid.
vii Transcript at PN20.
viii [2010] FWA 874.
ix Ibid at para 13.
x [2009] FWA 1123.
xi Ibid at paras 11, 14 and 15.
xii [2012] FWA 1811.
xiii Ibid at para 22.
xiv [2011] FWA 7928.
xv Ibid at para 7.
xvi Transcript at PN208.
