Unwilling Employer Required to Bargain

A reluctant employer can be required to engage in enterprise bargaining if the employees secure a majority support determination as was the case when an automotive services company was ordered to bargain by the Fair Work Commission.

The company did not wish to bargain but the union, which represented six of the employees, was keen to do so. Using section 237 of the Fair Work Act, the union sought a majority support determination from the commission to require the employer to commence bargaining.

The commission advised the employer that a majority support determination did not mean that an agreement had to be made, only that if the commission made the determination, then the process must commence. The commission obtained the employer’s employee details and found that there were 10 employees that would be covered by an agreement that might be made.

In addition to that evidence, the commission confirmed that the six union members identified by the union were in fact employees, so there was a majority of the employees in support of bargaining. The legislation provides the commission with discretion not to make such a determination if there is some aspect of the matter which makes it unreasonable to do so, but in this case no such argument was made.

In summing up, the commission confirmed that the issue of the determination was “only the commencement of a process which may culminate in … an agreement”, highlighting to the parties that gaining a majority support determination is not a guarantee that an agreement will ever be made.

AMWU v McIlroy Auto Group [2016] FWC 1097 (18 February 2016)

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