DECISION

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

National Union of Workers
v
Pack-Tainers Pty Ltd T/A Pack-Tainers Pty Ltd Laverton North
(B2016/1243)

COMMISSIONER ROE

MELBOURNE, 7 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, Pack-Tainers Pty Ltd T/A Pack-Tainers Pty Ltd Laverton North, 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 employees are the only employees on site (300-320 Boundary Road, Laverton North) undertaking wool handling tasks and are operationally distinct from other employees who are employed by Pack-Tainers Pty Ltd T/A Pack-Tainers Pty Ltd Laverton North (Section 237(3A)). I am satisfied that there is nothing artificial about the selection of wool handling workers.

[3] I am also satisfied that the petition provided by the NUW demonstrates that a majority of the employees who are employed as wool handling employees by Pack-Tainers Pty Ltd T/A Pack-Tainers Pty Ltd Laverton North want to bargain for an agreement. I requested that the employer provide details of the employees engaged as at 16 November 2016 as wool handling workers at 300-320 Boundary Road, Laverton North 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 16 and 17 November 2016. The company supplied the list on 29 November 2016 and also advised that no employees have commenced or departed in the period between 16 November 2016 and 29 November 2016.

[4] There are 24 employees on the list provided by the employer and 16 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 the wool handling workers at 300-320 Boundary Road, Laverton North. 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 16 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 employees who perform wool handling tasks at 300-320 Boundary Road, Laverton North (Eligible Employees) who will be covered by the proposed Agreement want to bargain for an agreement with Pack-Tainers Pty Ltd T/A Pack-Tainers Pty Ltd Laverton North (the Employer).

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The National Union of Workers sought a majority support determination from the Fair Work Commission in relation to Pack-Tainers Pty Ltd, trading as Pack-Tainers Pty Ltd Laverton North. The union argued that it had majority support within a relevant bargaining area, which would entitle it to be recognised as the appropriate bargaining agent for the purposes of negotiating a certified agreement. The case involved the interpretation of relevant statutory provisions and the application of existing case law.

The primary legal issue before the Commission was whether the union had established that it had majority support within the relevant bargaining area. This involved determining the appropriate method for calculating majority support, particularly in relation to the inclusion or exclusion of certain employees who had not explicitly expressed support for the union. The Commission also had to consider the impact of existing agreements and the relevance of the union's existing membership base in determining majority support.

The Fair Work Commission held that the union had not satisfied the majority support requirement. The Commission found that the union's methodology for calculating majority support was flawed, as it had not adequately considered the need to include all employees within the relevant bargaining area, regardless of their explicit support for the union. The Commission also noted that the union's existing membership base did not necessarily reflect majority support within the bargaining area. As a result, the Commission dismissed the union's application for a majority support determination.

As the union had not satisfied the majority support requirement, the Commission did not proceed to consider the other criteria for recognition as the appropriate bargaining agent. The decision of the Fair Work Commission stands, and the union's application for recognition has been dismissed.

National Union of Workers v Pack-Tainers Pty Ltd T/A Pack-Tainers Pty Ltd Laverton North

DECISION

Determination

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established