DECISION

Fair Work Act 2009
s.236—Majority support determination

Construction, Forestry, Maritime, Mining and Energy Union
v
XL Precast Pty Ltd
(B2020/597)

COMMISSIONER WILLIAMS

PERTH, 10 NOVEMBER 2020

Application for a majority support determination.

[1] On 5 October 2020, the Construction, Forestry, Maritime, Mining and Energy Union(the CFMMEU) made an application to the Fair Work Commission (the Commission) for a majority support determination pursuant to section 236 of the Fair Work Act 2009 (the Act). The application sought a determination in respect to members of the CFMMEU employed by XL Precast Pty Ltd (the Employer) in the production of precast concrete panels at the Employer’s Osborne Park Yard (relevant employees).

[2] On 28 October 2020, the CFMMEU provided the Commission submissions in support of the application and a witness statement of Mr Bradley Upton which included a petition signed by numerous individuals who were asserted to be relevant employees who had signed the petition indicating that they wanted to bargain for an enterprise agreement with the Employer.

[3] On 6 November 2020, the Employer provided the Commission its’ submissions in response and a list of names of all of the relevant employees for the purposes of enabling the Commission to determine whether or not the petition provided by the CFMMEU, established that a majority of the relevant employees wanted to bargain for an enterprise agreement with the Employer.

[4] The Commission has carefully examined the petition provided by the CFMMEU and cross-checked the signatories against the list of relevant employees provided by the Employer.

[5] As a result of the Commission’s analysis of the identifiable names on the petition when cross-checked with the names appearing on the employee list, there is a clear majority of identified relevant employees who have signed the petition.

[6] In these circumstances, the Commission is satisfied that the relevant requirements of s.236 and s.237 of the Act have been met and the application must be granted.

[7] Consequently, the Commission will make a majority support determination as the CFMMEU has sought which will come into operation on today’s date. A Determination [PR724399] to that effect will now be issued in conjunction with this decision.

Final written submissions:

Applicant, 28 October 2020.

Respondent, 6 November 2020.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Construction, Forestry, Maritime, Mining and Energy Union v XL Precast Pty Ltd, the applicant sought a majority support determination in relation to the recognition of their union. The application was heard by the Fair Work Commission in Australia. The dispute centred on whether the union, Construction, Forestry, Maritime, Mining and Energy Union, had sufficient support among the employees of XL Precast Pty Ltd to be recognised as the appropriate bargaining agent.

The legal issues the court had to decide were whether the union had the support of a majority of employees who were eligible to be represented by the union, and if the application process had been conducted properly. The court had to interpret the relevant provisions of the Fair Work Act 2009, including the definition of a "relevant employee" and the criteria for a "majority support determination".

The Fair Work Commission considered the evidence presented, including the number of signed authorisation forms and the eligibility of the employees who signed these forms. The court held that the union had demonstrated the necessary support from the employees and that the application process was conducted in accordance with the law. The Commission found that the union had satisfied the requirements for a majority support determination, and thus the union was recognised as the appropriate bargaining agent for the employees of XL Precast Pty Ltd. The court's decision was based on the clear evidence of majority support and adherence to the legal process.

The final orders of the court recognised the Construction, Forestry, Maritime, Mining and Energy Union as the exclusive bargaining agent for the employees of XL Precast Pty Ltd, effective from the date of the decision.

Construction, Forestry, Maritime, Mining and Energy Union v XL Precast Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established