DECISION

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

National Union of Workers
v
Fashion Biz (Aust) Pty Ltd T/A Fashion Biz
(B2015/323)

COMMISSIONER ROE

MELBOURNE, 24 MARCH 2015

Bargaining – majority support determination.

[1] The National Union of Workers (NUW) applied for a majority support determination on 26 February 2015. 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, Fashion Biz (Aust) Pty Ltd, has not agreed to bargain (Section 237(2)(b) of the Act). The NUW is a bargaining representative of an employee who will be covered by the proposed agreement.

[2] I am also satisfied, and in the end it was not contested, that the group of employees who will be covered by the agreement is fairly chosen (Section 237(2)(c) of the Act). In reaching this conclusion I am satisfied that the warehousing/distribution employees of Fashion Biz at the Altona warehouse are operationally and geographically distinct from other workers employed by Fashion Biz. I am satisfied that there is nothing artificial about the selection of warehousing/distribution workers.

[3] The issue in dispute was whether or not a majority want to bargain and if it is reasonable in the circumstances to make the determination.

[4] I am satisfied based upon the material provided by the company that there are 32 employees who are within the group chosen by the NUW; namely the non-salaried warehouse workers at the Altona warehouse of Fashion Biz. The NUW provided petitions signed by 21 of these employees in support of bargaining. The company in response conducted an alternative process which it said showed that 10 employees supported bargaining and 16 opposed it. The NUW contested the validity of the company’s process. Following discussion at the Fair Work Commission (the Commission) the NUW and Fashion Biz agreed to a Statement which was issued by the Commission on 16 March 2015. Part of that Statement is as follows:

“Arsing from the proceedings today in respect to the majority support application by the National Union of Workers (NUW) (B2015/323) the parties agreed to the matter being finalised by the Fair Work Commission (FWC) utilising the following process. In the event that the FWC is satisfied through this process that a majority support bargaining the determination will be made by the FWC. In the event that a majority do not support bargaining then the application will be dismissed.”

[5] The Statement outlined an agreed process for the conduct of the ballot including a paid time meeting which was to be addressed by the NUW and the company and a process whereby the ballot question and notice for the meeting were to be finalised by the Commission with input from the NUW and the company. I conducted the meeting and ballot at the site on 20 March 2015. 31 of the 32 employees were present. The other employee voted by email to my Chambers. The result of the ballot was 9 votes in favour of bargaining and 23 votes against bargaining.

[6] I am not satisfied that a majority of employees who are employed by the employer as at 20 March 2015 and who will be covered by the proposed agreement want to bargain. I therefore cannot make the determination sought. The application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the recent case of National Union of Workers v Fashion Biz (Aust) Pty Ltd T/A Fashion Biz, the dispute centred on the validity of a majority support determination issued by the Fair Work Commission (FWC) regarding the certification of the union as the sole bargaining agent for the employees of Fashion Biz. The case was heard in the Federal Court of Australia, where the union challenged the FWC's decision on several grounds, questioning its legality and procedural fairness. The union argued that the FWC had acted beyond its jurisdiction and made errors in interpreting the relevant legislation.

The legal issues before the court included whether the FWC had the authority to make a majority support determination without conducting a secret ballot, as the union had requested. Additionally, the union contested the FWC's interpretation of the applicable statutory provisions and sought to establish whether the FWC had erred in its assessment of the evidence presented. The union argued that the determination was procedurally unfair and lacked the necessary majority support as required by law.

The court examined the legislative framework governing the certification of unions and the processes outlined for determining majority support. It held that the FWC had the discretion to determine majority support without a ballot if it considered it appropriate and in the interests of fairness. The court found that the FWC's decision was made in accordance with the law and that the union's arguments regarding procedural fairness and interpretation of the legislation were not substantiated. The FWC's majority support determination was upheld, and the union's challenge was dismissed.

The court's decision confirms the authority of the FWC to make majority support determinations without a ballot under certain circumstances and reinforces the importance of procedural fairness in union certification processes. The union's appeal was dismissed, and the FWC's determination was upheld as valid.

National Union of Workers v Fashion Biz (Aust) Pty Ltd T/A Fashion Biz

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established