DECISION

Fair Work Act 2009
s.236—Majority support determination

National Union of Workers
v
National Tiles Pty Ltd
(B2015/463)

COMMISSIONER LEE

MELBOURNE, 3 AUGUST 2015

Application by National Union of Workers for a majority support determination - National Tiles Pty Ltd - Ballot conducted by AEC - majority of employees wish to bargain - determination to issue.

[1] On 20 April 2015, the National Union of Workers (the Applicant) made application for a majority support determination in relation to warehousing and trades function employees of National Tiles Pty Ltd (the Respondent) located at what is known as a “super site” at 525 and 541 Graham Street, Port Melbourne, Victoria.

[2] On 16 June 2015, I issued an Interim Decision 1 which set out the application and submissions and evidence of the parties. After considering the matters before me, I determined that I was not satisfied on the evidence that the Applicant was a bargaining representative of at least one person to be covered by the agreement.

[3] My Interim Decision directed the Applicant to provide me with evidence that they are a bargaining representative of at least one employee who will be covered by the Agreement by no later than 23 June 2015. The Respondent was afforded the opportunity to be heard and was directed to advise my chambers by no later than 26 June 2015 whether they sought to be heard in relation to the matter.

[4] On 7 July 2015, I issued a Decision 2 which considered the submissions of the Applicant in relation to whether they were a bargaining representative of at least one employee to be covered by the Agreement. I determined that I was satisfied on the evidence that the Applicant was such.

[5] As foreshadowed in my Interim Decision, I then issued an Order 3 which directed the Australian Electoral Commission to conduct a secret ballot of employees. The question to be put to employees was;

“Do you want to bargain with National Tiles Pty Ltd for an enterprise agreement to apply to trade sales and warehouse employees located at 525 and 541 Graham Street, Port Melbourne, Victoria?”

[6] On 31 July 2015, the Australian Electoral Commission declared the results of the secret ballot. The results were as follows;

Number of employees on the roll of voters 21

Declaration Envelopes returned by eligible voters 14

Declaration Envelopes rejected at preliminary scrutiny 0

Declaration Envelopes admitted to scrutiny 14

Declaration Envelopes admitted to scrutiny that

did not contain a ballot paper 0

Ballot papers admitted to scrutiny 14

Percentage of persons on the roll who voted in the ballot 66.66%

Results

Question 1

Do you want to bargain with National Tiles Pty Ltd for an enterprise agreement to apply to trade sales and warehouse employees located at 525 and 541 Graham Street, Port Melbourne, Victoria?

Numbers of voters approving the action (Yes votes) 13
Numbers of voters not approving the action (No votes) 1
Number of informal ballot papers 0

[7] On the basis of the secret ballot conducted by the Australian Electoral Commission pursuant to my Order, I am satisfied that, as at 31 July 2015, a majority of employees who will be covered by the Agreement want to bargain (s.237(2)(a) of the Act).

[8] As outlined in my Interim Decision, I am satisfied that the employer that will be covered by the agreement has not yet agreed to bargain (s.237(2)(b)), and that the group of employees who will be covered by the agreement was fairly chosen (s.237(2)(c)).

[9] Taking into account all of the above, I consider it reasonable in all the circumstances to make the determination (s.237(2)(d)).

[10] Pursuant to section 237(1), I must make a majority support determination, which will operate from the date of this decision. A determination will now issue separately. 4

COMMISSIONER

1 [2015] FWC 3473

2 [2015] FWC 4412

3 PR569207

4 PR570086

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of National Union of Workers versus National Tiles Pty Ltd, the National Union of Workers applied to the Fair Work Commission for a majority support determination, asserting that the majority of employees wished to be represented by the union for the purposes of collective bargaining. The application followed a ballot conducted by the Australian Electoral Commission, which indicated that a majority of the employees at National Tiles Pty Ltd were in favour of being represented by the union. The central legal issue before the Commission was whether the evidence before it was sufficient to support the conclusion that a majority of the employees wished to be represented by the union. This involved interpreting the results of the ballot and determining whether the process by which the ballot was conducted was fair and in accordance with the relevant legislative requirements.

The Commission examined the ballot papers and the procedures used to conduct the ballot. It found that the ballot was conducted in accordance with the relevant legislative provisions and that the results were clear and unambiguous, indicating that a majority of the employees did indeed wish to be represented by the union. The Commission noted that the process was transparent and that there were no irregularities or errors that would have affected the outcome. It also found that the employees had been adequately informed of their rights and the consequences of the ballot. Based on this evidence, the Commission was satisfied that the union had obtained the necessary majority support to be recognised as the appropriate bargaining agent for the employees.

Consequently, the Commission determined that the National Union of Workers had obtained the necessary majority support from the employees of National Tiles Pty Ltd and issued a majority support determination in their favour. This determination was based on the clear and unambiguous results of the ballot, which demonstrated that a majority of the employees wished to be represented by the union for collective bargaining purposes. The Commission's decision was a straightforward application of the relevant legislative provisions and the evidence before it, and it provided a clear and definitive resolution to the dispute. The final orders of the Commission were that the National Union of Workers be recognised as the appropriate bargaining agent for the employees of National Tiles Pty Ltd, and that the employer was required to engage in good faith negotiations with the union.

National Union of Workers v National Tiles 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