Application by United Workers’ Union

[2021] FWC 2105

[2021] FWC 2105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Application by United Workers’ Union
(B2021/195)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 16 APRIL 2021

Application for a majority support determination.

[1] On 19 March 2021, the United Workers’ Union filed an application pursuant to section 236 of the Fair Work 2009 (Cth) (the Act) to the Fair Work Commission (the Commission) for a majority support determination of employees of Brand Developers Aust. Pty. Ltd.

The Act

[2] The Act at ss.236 and 237 relevantly provide:

“236 Majority support determinations

(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.”

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.”

Conclusion

[3] On 15 April 2021, a Conference was conducted with the parties in relation to the application. During the Conference it was agreed that the requirements of ss.236 and 237 were wholly and validly met and that I would issue the determination sought by consent of the parties.

[4] I am satisfied that all the requirements of ss.236 and 237 of the Act have been met in this case. Accordingly, the Commission makes the following majority support determination:

“A majority of the employees of Brand Developers Aust. Pty. Ltd. employed as warehouse employees engaged at warehouses or distribution centres within the state of Victoria want to bargain with the employer for an enterprise agreement.”

[5] Pursuant to s 237(4) of the Act, this majority support determination comes into operation on 16 April 2021. A Determination to this effect is contained in PR728714.

DEPUTY PRESIDENT

Appearances:

Mr Rowan Payne, for the Applicant

Mr Joppu Varghese, for the Respondent

Hearing details:

Melbourne

2021

15 April (via Teleconference)

Printed by authority of the Commonwealth Government Printer

<PR728713>