DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
McIlroy Auto Group
(B2016/246)

Majority support determination - majority of employees wanting to bargain established.

[1] On 28 January 2016 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) lodged an application pursuant to s.236 of the Fair Work Act 2009 (the FW Act) for a majority support determination to apply to employees of McIlroy Auto Group who are Mechanical Technicians (mechanics) including direct hire apprentices and trainees and parts interpreters. 1

[2] McIlroy Auto Group advised that it was opposed to the application. The matter was the subject of a hearing on 12 February 2016. At this hearing Mr Hardy represented the AMWU and Mr Oates, by telephone, represented the McIlroy Auto Group.

[3] At the hearing, I explained that the making of a majority support determination simply confirmed that the majority of the employees to be covered by a proposed agreement wanted to bargain with the employer towards such an agreement. I explained that the effect of a majority support determination was to require the commencement of the agreement bargaining process, but that it neither required that an agreement be reached, nor dictated the terms of any such agreement.

[4] I explained that the making of a majority support determination was conditional on the circumstances set out in s.237 being met. This section states:

“237 When the FWC must make a majority support determination

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.”

[5] The AMWU sought that the majority support determination be made on the basis of employee signatures on a petition provided to me on a confidential basis. The McIlroy Auto Group position was that it was not satisfied, on the information before it, that a majority of that group of employees wanted to bargain for an agreement. McIlroy Auto Group took no issue with the proposed scope of the agreement, but simply wanted clarification of the majority employee position, as it confirmed that employees were paid in excess of award minimums.

[6] I proposed to the parties that McIlroy Auto Group provide to me, on a confidential basis, a list of the names and classifications of all of its employees who were Mechanical Technicians (mechanics) including direct hire apprentices and trainees and parts interpreters as of the date of this hearing, so that I could confirm that the petition signatories were covered by the scope of the proposed agreement and establish whether the required majority support had been achieved. McIlroy Auto Group confirmed that, if that majority support was established, it accepted that the majority support determination should then be made.

[7] McIlroy Auto group has subsequently provided me with a list of its 10 employees who are Mechanical Technicians (mechanics) including direct hire apprentices and trainees and parts interpreters. Six of those persons have signed the AMWU petition confirming that they wish to bargain with their employer, for an agreement. I note in passing that these employees have also confirmed that they wish to be represented in this bargains process by the AMWU.

[8] The effect of s.237 is that I am required to make a majority support determination if the requirements of this section are satisfied. In this respect my comparison of the McIlroy Auto Group list of employees and the AMWU petition confirms that a majority of the employees to be covered by the proposed agreement want to bargain for an agreement. McIlroy has not yet agreed to bargain. There is no argument that the group of employees to be covered by the proposed agreement was not fairly chosen. In this respect, I note that these employees are able to be represented by the AMWU and that the identification of this group of employees reflects a relatively common approach in the automotive service sector such that I should, in any event, regard the group to be fairly chosen.

[9] No other factor mitigating against the making of a majority support determination has been put to me. Accordingly, s.237 requires that majority support determination be made in this instance. That determination (PR577204) will be issued consistent with this decision.

[10] It remains for me to confirm that this determination represents only the commencement of a process which may culminate in the approval of an agreement consistent with s.185 of the FW Act. I anticipate that McIlroy Auto Group will issue notices of employee representative rights consistent with s.173 of the FW Act shortly. Those notices should reflect the content of Schedule 2.1 of the Fair Work Act 2009 Regulations. I anticipate that McIlroy Auto Group will then negotiate with the AMWU as the bargaining representative for some of the employees, together with any other nominated employee bargaining representative, through discussions directed at trying to reach agreement on a proposal to be put to employees. If such a proposal is endorsed by a majority of the employees who vote on it, an application for approval of that agreement may then be made. Further information about the agreement making process can be obtained from many sources, including the Fair Work Commission website www.fwc.gov.au

Appearances:

T Hardie for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

W Oats for McIlroy Auto Group.

Hearing details:

2016.

Adelaide:

February 12.

 1   See application (Form F30), para 2.2

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<Price code A, PR577199>