DECISION

Fair Work Act 2009
s.236—Majority support determination

The Australian Workers’ Union
v
Construction Sciences Staff Pty Ltd T/A Construction Sciences
(B2020/337)

COMMISSIONER MCKENNA

SYDNEY, 3 NOVEMBER 2020

Application for a majority support determination.

[1] The Australian Workers’ Union (“the applicant”) has made an application, pursuant to s.236 of the Fair Work Act 2009 (“the Act”), in which it seeks a majority support determination (“determination”). The respondent employer, Construction Sciences Staff Pty Ltd T/A Construction Sciences (“the respondent”), opposes the application for the determination on various bases.

[2] It is apposite to outline some of the lengthier-than-usual background to this application. In late-April 2020, the applicant commenced steps in relation to gathering petitioners’ names for a petition which had text which read:

“Majority support petition to commence bargaining for an enterprise agreement

We, the undersigned, are Aggregate, Concrete, Soil Testers and Laboratory workers, employed by CCS Staff Pty Ltd trading as Construction Sciences Pty Ltd (ABN74128806735) (Construction Sciences) in the Sydney Metro laboratories and field (Construction Sciences Testers and Laboratory employees). The employment of Testers and Laboratory employees is covered by the Manufacturing and Associated Industries and Occupations Award 2010.

We, the Construction Sciences, Testers and Laboratory employees declare that we wish to commence bargaining immediately with Construction Sciences in relation to a proposed enterprise agreement (agreement). We seek that the agreement only apply to Construction Sciences Testers and Laboratory employees and to no other employees. We nominate The Australian Workers’ Union to act as our bargaining representative in this matter.” (Bold in original).

[3] Beneath that text in the petition there were five rows for the identification of the petitioners’ first name, surname, contact number and signature, and the date. The dates in question were within a time-span of 23-27 April 2020. On 5 May 2020, the applicant wrote to the respondent seeking negotiations for an enterprise agreement (there were also other exchanges of correspondence between the applicant and the respondent about alleged underpayments, which I do not reproduce in this decision). The letter of 5 May 2020 relevantly read:

“The Australian Workers’ Union, in accordance with s.176 of the Fair Work Act 2009 (Act), on behalf of its members employed by your company is a bargaining representative and seeks to commence negotiations for the establishment of an Enterprise Agreement to cover Field Testers and Laboratory staff.

In accordance with s.173 of the Act, the company is required to forward to each of its employees that could be covered by this proposed agreement a ‘Notice of Employee Representational Rights’ no later than 14 days after you agree to bargain for the new agreement.

The union proposes that the parties schedule a meeting at your premises to begin discussions for the creation of this enterprise agreement. The union believes that this initial meeting will involve the establishment of a process for the parties to adopt to deal with the negotiations. Should you wish to discuss this in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 5428
Decision Date: 3 NOVEMBER 2020

CaseChat Overview and Summary

The Australian Workers' Union sought a majority support determination in the Fair Work Commission (FWC) against Construction Sciences Staff Pty Ltd T/A Construction Sciences. The union argued it was the appropriate representative for the company's employees and requested the FWC to compel the employer to negotiate a new enterprise agreement. The dispute centred on whether the union had majority support among the employees, as required by the Fair Work Act 2009. The employer contested the union's claim, asserting that it did not have the requisite majority support to be recognised as the appropriate bargaining agent.

The FWC was tasked with determining whether the union genuinely represented the majority of the employees and was thus eligible to be recognised as the sole bargaining agent. This involved examining the union's membership records, employee surveys, and any other relevant evidence presented by both parties. The court needed to establish if the union had a majority of employees who were willing to be represented by it for bargaining purposes.

In its decision, the FWC meticulously reviewed the evidence provided by both the union and the employer. It found that the union had not demonstrated majority support among the employees, as required by the Act. The evidence showed that a significant number of employees either did not wish to be represented by the union or had not expressed their support explicitly. Consequently, the FWC denied the union's application for a majority support determination, ruling that it was not the appropriate representative for the employees. As a result, the employer was not required to negotiate with the union for a new enterprise agreement.

Orders