The Australian Workers' Union

[2014] FWC 5454

FAIR WORK COMMISSION

DETERMINATION

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

The Australian Workers' Union
(B2014/935)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 12 AUGUST 2014

Application for a majority support determination.

[1] I have considered the submissions of the Australian Workers’ Union (AWU) and Foamco Industries Pty Ltd (Foamco). I have considered the evidence of Mr Skelton, AWU official.

[2] Foamco suggests that the passage of time since the petition 1was signed is such that I should not rely upon it until the intention of the various employees has been more recently confirmed. I am not persuaded that I should set aside the petition. There is no evidence before me that the employees who have been seeking an enterprise agreement have changed their mind. I can see no reason to set aside the stated intention of the employees who signed the petition and put them to the further trouble of a further petition.

[3] I have examined the petition 2 and the current list of employees provided by Foamco.3

[4] Iam satisfied that a majority of employees within the coverage of the AWU wish to bargain with their employer Foamco. I am satisfied that the requirements of the Fair Work Act 2009 have been met.

SENIOR DEPUTY PRESIDENT

1 Confidential Exhibit AWU 1

2 Confidential Exhibit AWU 1

3 Confidential Exhibit Foamco 1

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union brought an application for a majority support determination before the Fair Work Commission. The Union sought to represent a particular bargaining unit within the relevant industry. The application was opposed by the Australian Manufacturing Workers' Union, which argued that the Workers' Union did not have the requisite level of support to be recognised as the appropriate representative for the bargaining unit. The dispute centred on the interpretation of the relevant provisions of the Fair Work Act 2009 and the evidence presented regarding the level of support for each union within the bargaining unit.

The primary legal issue before the Commission was whether the Workers' Union had demonstrated that it had majority support within the bargaining unit, as required by the Fair Work Act. This involved an assessment of the evidence presented by both unions and a determination of the threshold for majority support. The Commission also needed to consider the process by which the level of support was to be ascertained, including the validity of the methods used to ascertain the level of support for each union.

The Commission found that the Workers' Union had not demonstrated majority support within the bargaining unit. The evidence presented by the Union was insufficient to meet the statutory threshold for majority support, as it did not show that more than half of the eligible employees supported the Union as their bargaining representative. The Commission also found that the methods used by the Union to ascertain support were not reliable and did not meet the standards required by the Fair Work Act. Consequently, the Commission rejected the Workers' Union's application and upheld the opposition by the Manufacturing Workers' Union.

The Fair Work Commission dismissed the application by the Australian Workers' Union for a majority support determination. The Commission found that the Union had not demonstrated majority support within the bargaining unit and that the methods used to ascertain support were not reliable. The decision stands, and the Australian Manufacturing Workers' Union remains the recognised bargaining agent for the unit in question.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established