The Australian Workers' Union v Debco Pty Ltd

[2011] FWA 5490

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.236—Majority support determination

The Australian Workers’ Union
v
Debco Pty Ltd
(B2011/73)

COMMISSIONER BISSETT

MELBOURNE, 17 AUGUST 2011

Application for a majority support determination.

[1] This is an application for a majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act) with respect to employees working in the operations area of Debco Pty Ltd (Debco) at Tyabb in Victoria.

[2] The application was made by the Australian Workers’ Union (AWU) on 15 April 2011. On 14 July 2011 I issued an interim decision. 1 In that decision I found that the AWU has the right to enrol as members those persons employed by Debco for whom it seeks to bargain and determined the group of employees for the agreement to be fairly chosen.

[3] Arising from that decision I conducted a secret ballot of employees proposed to be covered by the agreement. The details and process for the ballot were agreed in conference between the AWU and Debco. The ballot was conducted on 16 August 2011 at Debco between 2.00pm and 3.00pm. Employees who would not be present at that time were advised that they could vote before that time by contacting my chambers.

[4] A total of 31 employees were on the list of persons eligible to vote as at 8 August 2011. Prior to the date of voting I was advised that one of those persons eligible to vote had resigned from the company. A total of 30 people were therefore eligible to vote.

[5] Of those 30 eligible employees 22 voted. Of those who voted, seven voted in favour of wishing to bargain for an enterprise agreement to cover the operations employees employed by Debco at Tyabb.

[6] On this basis I am not satisfied that a majority of employees wish to bargain for an agreement. 2

[7] The application by the AWU for a majority support determination is dismissed.

COMMISSIONER

1 [2011] FWA 4393.

2 S.237(2)(a) Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union filed an application in the Fair Work Commission against Debco Pty Ltd, seeking a majority support determination. The union aimed to establish that a majority of Debco's employees wished to be represented by the union for bargaining purposes. Debco contested the application, arguing that the union had not demonstrated sufficient support among its employees.

The central legal issue before the Commission was whether the union had provided adequate evidence to satisfy the threshold requirement for a majority support determination. The union submitted that it had gathered sufficient signed authorisation forms from Debco's employees, while Debco challenged the validity and sufficiency of the evidence provided.

The Commission examined the evidence presented by the union, including the number and validity of the authorisation forms. It found that while the union had collected a significant number of forms, several were either incomplete or invalid, failing to meet the required standards. Consequently, the Commission concluded that the union had not demonstrated a majority of employees supported its application. The application for a majority support determination was therefore dismissed.

The Commission's decision was definitive, and no further orders were made. The union was not granted representation rights for Debco's employees, and the matter concluded with the dismissal of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established