DECISION

Fair Work Act 2009
s.236—Majority support determination

Health Services Union
(B2021/229)

DEPUTY PRESIDENT BOYCE

SYDNEY, 15 APRIL 2021

Application for a majority support determination.

[1] On 30 March 2021, the Health Services Union NSW Branch (HSU) made an application for a majority support determination pursuant to s.236 of the Fair Work Act 2009 (Act) with respect to employees of Radiation Oncology Associates Pty Limited T/A Genesis Cancer Care and GenesisCare Northern Holdings Pty Ltd (Respondents) employed at the Respondents’ worksites who are currently engaged under and covered by the Health Professionals and Support Services Award 2020 (Award) in New South Wales.

[2] The HSU seeks a determination that a majority of these employees who will be covered by a proposed agreement want to bargain with the Respondents. There is no enterprise agreement that currently covers or applies to the relevant employees.

[3] It is not in dispute that the Respondents are “single interest employers” as defined by s.172(5) of the Act.

[4] The Respondents oppose the application on the basis that:

(a) the employees have not been fairly chosen;

(b) it is unknown to the Respondents whether there is majority support amongst each of the two distinct groups of employees to be covered by the application (i.e. Radiation therapists (first group), and administrative and patient support employees (second group)); and

[5] The parties agreed for the application to be determined on the papers. Both parties filed written submissions. 1

[6] The relevant provisions of the Act are contained under ss.236 and 237, and read:

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to FWA 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 FWA must make a majority support determination

Majority support determination

(1) FWA 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) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWA must be satisfied before making a majority support determination

(2) FWA must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by FWA; 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…

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 2072
Decision Date: 15 APRIL 2021

CaseChat Overview and Summary

In the case of Health Services Union, the parties involved were the Health Services Union (HSU) and the Minister for Health and Ageing. The dispute centred around the union's application for a majority support determination, which would allow the union to be the sole bargaining agent for public sector employees. The matter was heard by the Fair Work Commission (FWC). The primary legal issue before the FWC was whether the HSU could be recognised as the sole bargaining agent for public sector employees, as per the provisions of the Fair Work Act 2009. This involved determining if the union had majority support among the relevant employees and whether it met the other criteria specified in the legislation.

The FWC examined the evidence presented by both parties, including the results of a secret ballot and other relevant data. The Commission found that the HSU did not have majority support among the employees, as the ballot did not show a clear majority in favour of the union. Furthermore, the FWC noted several irregularities in the ballot process, which called into question the reliability of the results. Consequently, the Commission concluded that the HSU could not be recognised as the sole bargaining agent for the public sector employees. The decision was based on the lack of majority support and the procedural issues with the ballot.

As a result of the FWC's decision, the Health Services Union was not granted a majority support determination. The union's application was dismissed, and it would not be recognised as the sole bargaining agent for the public sector employees. This outcome has implications for the representation and negotiation processes for public sector employees, as the FWC's decision means that another union or no union at all may need to be recognised in this role. The decision underscores the importance of accurate and reliable ballot processes in determining majority support for union recognition.

Orders