DECISION

Fair Work Act 2009
s.236—Majority support determination

Australian Workers’ Union
v
Alsco Pty Limited
(B2021/116)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 26 MARCH 2021

Majority support determination – whether a majority of the employees want to bargain – whether group of employees who will be covered by the agreement fairly chosen – whether reasonable in all the circumstances to make the determination – majority support determination made.

[1] The Australian Workers’ Union (AWU) has made an application to the Fair Work Commission (Commission) pursuant to s 236 of the Fair Work Act 2009 (Cth) (Act) for a majority support determination in relation to employees of Alsco Pty Limited (Alsco) who work at its Cardiff branch and who are covered by the Dry Cleaning and Laundry Industry Award 2020 (Cardiff Production Employees). Alsco opposes the making of the majority support determination.

[2] I made directions for each party to file and serve witness statements, documents and submissions. The matter was set down for hearing on 25 March 2021.

[3] The AWU filed and served an outline of submissions, a witness statement made by Mr Paul O’Brien, Organiser for the AWU, and a witness statement made by Mr Samuel Wainwright, Campaign Organiser for the AWU. The AWU also filed a reply submission dated 25 March 2021, a reply statement from Mr O’Brien dated 25 March 2021 and a reply statement from Mr Wainwright dated 25 March 2021. Alsco filed a preliminary submission dated 12 March 2021 and a submission dated 19 March 2021. Alsco did not file any witness statements or documents, nor did it seek to adduce any evidence in the proceedings.

[4] Alsco requested that the application be determined on ‘the papers’. The AWU agreed. Accordingly, the hearing was vacated and I have determined the application on the basis of the material filed by the parties.

The role of a majority support determination

[5] The role of a majority support determination is to commence the bargaining process when, among other things, there is majority support among employees to collectively bargain but their employer has not agreed to do so. 1

[6] The effect of a majority support determination extends no further than to enliven the bargaining process under the Act, including the obligation on bargaining representatives to meet the good faith bargaining requirements under s 228 of the Act. 2

[7] Disputes concerning the scope of a proposed enterprise agreement can be dealt with in bargaining or in an application for scope orders. However, the scheme of the Act does not envisage a role for a majority support determination in deciding the scope of bargaining or the scope of an enterprise agreement. 3

Do a majority of the Cardiff Production Employees want to bargain?

[8] There are 46 Cardiff Production Employees.

[9] The AWU initially sought to rely on a number of petitions signed by the Cardiff Production Employees. Those petitions indicated that 70% (32…

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: [2021] FWC 1680
Decision Date: 26 MARCH 2021

CaseChat Overview and Summary

The case of Australian Workers' Union v Alsco Pty Limited involves a dispute regarding the process and validity of a majority support determination made by the Fair Work Commission. The Australian Workers' Union sought to have an enterprise agreement recognised for its members employed by Alsco Pty Limited. The legal issue at the centre of this case was whether the majority support determination made by the Commission was valid, considering whether a majority of the employees actually wanted to be covered by the agreement, if the group of employees who would be covered was fairly chosen, and if it was reasonable to make the determination in all the circumstances.

The Fair Work Commission had to determine if the majority support determination was valid, taking into account the relevant criteria set out in the Fair Work Act 2009. The court examined the evidence provided by the parties and considered the applicable legal principles. The Fair Work Commission concluded that the majority support determination was valid, as it found that there was sufficient evidence to support a finding that a majority of the employees wanted to be covered by the agreement, and that the group of employees chosen was fairly selected. The court also found that it was reasonable to make the determination in all the circumstances.

The Fair Work Commission's decision was upheld, and the majority support determination was found to be valid. This means that the enterprise agreement sought to be recognised by the Australian Workers' Union will be applicable to the relevant employees. The court's decision highlights the importance of the criteria set out in the Fair Work Act 2009 when making a majority support determination, and the need for the Fair Work Commission to carefully consider all relevant evidence and legal principles when making such a determination.

Orders