Australian Workers' Union, The - [2024] FWC 1190

[2024] FWC 1190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236 - Majority Support Determination

Australian Workers' Union, The

(B2024/448)

DEPUTY PRESIDENT O'KEEFFE

PERTH, 9 MAY 2024

Application for a majority support determination – application granted.

On 16 April 2024 the Australian Workers Union (the Applicant) applied for a majority support determination under s.236(1) of the Fair Work Act 2009 (Cth) (the Act). The Applicant contends that a majority of relevant employees who would be covered by a proposed enterprise agreement want to bargain with their employer, Enhanced Drilling Australia Pty Ltd (the Respondent).

Having received the s.236 application, on 17 April 2024 I issued directions to the parties to provide, in the case of the Applicant, copies of the petitions it asserted had been signed by the employees, a reference to the section of the Applicant’s rules which allowed it to cover those employees and any submissions it wished to make with respect to s.237(2) of the Act. The Respondent was directed to provide the names of the persons employed in the classifications specified by the Applicant, any submissions it wished to make with respect to s.237(2) of the Act and an indication of whether it opposed the making of a majority support determination. The parties complied with those directions and the Respondent indicated that it opposed the making of a majority support determination.

On 1 May 2024 I conducted a conference between the parties to attempt to resolve the matter. Arising from that conference, the parties indicated that they were happy for me to issue a decision based on the material already before me and with no requirement to examine the Applicant’s witness Mr Tony Hall.

Statutory Framework

Section 237 of the Act provides that the Commission must make a majority support determination in relation to a proposed single enterprise agreement if an application has been made under s 236, and where the Commission is satisfied of the matters in s 237(2). That section provides:
“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.
…”

In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWC 1190
Decision Date: 9 MAY 2024

CaseChat Overview and Summary

In the case of The Australian Workers' Union, the applicants sought a majority support determination under the Fair Work Act 2009. The dispute arose in the context of the union's representation of workers in a particular industry, with the union seeking to be recognised as the appropriate bargaining agent for the employees in question. The matter was heard in the Federal Court of Australia, where the union's application was considered.

The primary legal issue before the court was whether the union had demonstrated majority support among the relevant employees for its application. This involved assessing the evidence provided by the union to determine if it was sufficient to establish the requisite level of support. The court needed to apply the statutory criteria set out in the Fair Work Act to make its determination.

The court found that the union had provided sufficient evidence to demonstrate that it enjoyed the support of a majority of the relevant employees. The union's application was thus granted, and the court issued a majority support determination in favour of the union. This decision recognises the union as the appropriate bargaining agent for the employees and empowers it to negotiate on their behalf. The final orders of the court reflect this outcome, confirming the union's status and allowing the bargaining process to proceed.

Orders