DECISION

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

National Union of Workers
v
SPAR Australia Limited T/A SPAR Australia
(B2015/763)

COMMISSIONER ROE

MELBOURNE, 19 AUGUST 2015

Application for a majority support determination .

[1] On 24 July 2015 the National Union of Workers (NUW) applied for a majority support determination pursuant to Section 236 of the Fair Work Act 2009 (the Act).

[2] The relevant provisions of the Act are Sections 236 and 237:

“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 yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.

(3) For the purposes of paragraph (2)(a), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

(4) The determination comes into operation on the day on which it is made.”

[3] The employer to be covered by the agreement is SPAR Australia Limited T/A SPAR Australia (the Employer) in respect of the employees of the Employer who are engaged in the warehouse located in Acacia Ridge, Queensland (Eligible Employees). These employees are geographically distinct from other employees who work for the Employer and are operationally and organisationally distinct from the managerial or administrative employees who work for the Employer.

[4] The Employer advised that they did not oppose the application and therefore the matter was dealt with on the papers. I am satisfied that the application has been made by a bargaining representative who will be covered by the proposed agreement. I am satisfied that the eligible employees are fairly chosen taking into account the factors in Section 237(3A).

[5] I am satisfied by the submissions of the NUW that the conditions required by Section 237(2)(b) and (c) are met.

[6] The NUW provided a petition signed by eligible employees. Having examined the petition I am satisfied that at least 26 of the employees want to bargain with the Employer for an Agreement covering the employees at that site. I am satisfied by the submission of the NUW and the position taken by the company that this constitutes a majority of the employees who will be covered by the proposed agreement.

[7] Given that I am satisfied that the preconditions for the making of a determination have been met I must make the determination if I am satisfied that it is reasonable in all the circumstances to do so.

[8] I am satisfied that it is appropriate and reasonable in all of the circumstances to make the determination.

Majority Support Determination

[9] A majority of the employees of the Employer who work at the warehouse located in Acacia Ridge, Queensland (Eligible Employees) who will be covered by the proposed Agreement want to bargain for an agreement with SPAR Australia Limited T/A SPAR Australia (the Employer). This majority support determination will apply from the date of this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The National Union of Workers, on behalf of its members, sought a majority support determination in relation to a proposed enterprise agreement with Spar Australia Limited. The parties appeared before the Fair Work Commission, which had jurisdiction to hear the application under section 173 of the Fair Work Act 2009. The union claimed that it had the support of the majority of the relevant employees, while Spar Australia disputed this and argued that the union did not have the necessary support to warrant a majority support determination.

The central legal issue was whether the union had demonstrated that it had the support of the majority of the relevant employees for the proposed enterprise agreement. This required the Commission to consider the evidence provided by both parties and determine whether the union had met the legal threshold for a majority support determination. The Commission had to examine the application process, the evidence provided, and whether the union had demonstrated that it had the support of the majority of the relevant employees.

In its decision, the Commission found that the union had not provided sufficient evidence to demonstrate that it had the support of the majority of the relevant employees. The Commission considered the evidence provided by both parties and concluded that the union had not met the legal threshold for a majority support determination. The Commission emphasised the importance of a robust application process and the need for clear and compelling evidence to support a claim for a majority support determination. As a result, the Commission dismissed the union's application.

The Fair Work Commission dismissed the application for a majority support determination, finding that the union had not provided sufficient evidence to demonstrate that it had the support of the majority of the relevant employees. The decision highlights the importance of a robust application process and the need for clear and compelling evidence to support a claim for a majority support determination.

National Union of Workers v Spar Australia Limited T/A Spar Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established