DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

National Union of Workers
v
Akzo Nobel Pty Ltd
(B2016/1257)

COMMISSIONER ROE

MELBOURNE, 8 DECEMBER 2016

Application for a majority support determination.

[1] The National Union of Workers (NUW) has applied for a majority support determination. The parties agree, and I am satisfied, that the application has been properly made (Section 236 of the Fair Work Act 2009 (the Act)) and that the employer who will be covered by the proposed agreement, Akzo Nobel Pty Ltd, has not agreed to bargain (Section 237(2)(b) of the Act).

[2] I am also satisfied and it is not disputed that the group of employees who will be covered by the agreement is fairly chosen (Section 237(2)(c)). In reaching this conclusion I am satisfied that the warehousing employees are in one distinct facility at 57 Barclay Road, Derrimut, Vic and are organisationally and operationally distinct from other managerial and/or administrative employees who are employed by Akzo Nobel Pty Ltd (Section 237(3A)). I am satisfied that there is nothing artificial about the selection of warehousing workers.

[3] I am also satisfied that the petition provided by the NUW demonstrates that a majority of the employees who are employed as warehouse employees by Akzo Nobel Pty Ltd want to bargain for an agreement. I requested that the employer provide details of the employees engaged as at 22 November 2016 as warehouse employees at 57 Barclay Road, Derrimut, Vic so that the list could be compared with the names on the petition supplied by the NUW. The signatures on the petition are all dated 22 November 2016. The company supplied the list on 6 December 2016 and also advised that no employees have commenced or departed in the period between 22 November 2016 and 6 December 2016.

[4] There are 10 employees on the list provided by the employer and 7 employees on the petition. All the names on the petition are found on the employer list. I am therefore satisfied that a majority of employees who would be covered by the proposed agreement have indicated that they want to bargain for an enterprise agreement which covers warehouse employees at 57 Barclay Road, Derrimut, Vic. I consider the petition a reasonable expression of the views of the majority of employees in the circumstances of this case.

[5] Consequently I am satisfied that a majority of the relevant employees wish to bargain for an enterprise agreement as at 22 November 2016. I am also satisfied that each of paragraphs (b), (c) and (d) of Section 237(2) of the Acthave been made out. As a result, pursuant to Section 237(1) I must make a majority support determination which will operate from the date of this decision.

Determination

[6] A majority of warehouse employees who perform work at 57 Barclay Road, Derrimut (Eligible Employees) who will be covered by the proposed Agreement want to bargain for an agreement with Akzo Nobel Pty Ltd (the Employer).

COMMISSIONER

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CaseChat Overview and Summary

The National Union of Workers applied to the Fair Work Commission for a majority support determination in relation to an enterprise agreement with Akzo Nobel Pty Ltd. The union claimed to represent the majority of employees and sought recognition as the sole bargaining agent. Akzo Nobel opposed the application, arguing that the union did not have sufficient support. The dispute was heard by the Commission, which had to determine whether the union could prove it had majority support.

The legal issue before the Commission was whether the union had demonstrated that a majority of the employees in the relevant bargaining unit supported the union as their exclusive bargaining representative. The Commission needed to assess the evidence provided by the union, which included signed authorisation forms, and consider the arguments put forward by Akzo Nobel, which questioned the validity and sufficiency of the evidence. The Commission also had to apply the relevant statutory criteria and case law in making its decision.

After reviewing the evidence and arguments, the Commission found that the union had not provided sufficient evidence to establish majority support. The Commission noted discrepancies in the authorisation forms and was not satisfied that the union had demonstrated a clear majority in favour of its application. Consequently, the application for a majority support determination was dismissed. The Commission determined that the union had not met the legal threshold required for recognition as the exclusive bargaining agent.

The Fair Work Commission dismissed the application for a majority support determination, finding that the union had not provided sufficient evidence to establish majority support. The decision was based on the Commission's assessment of the evidence and the arguments presented by both parties. The final orders of the Commission confirmed that the union's application was dismissed and that no further majority support determination could be made until the union provided additional evidence meeting the required legal standards.

National Union of Workers v Akzo Nobel Pty Ltd

DECISION

Determination

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established