The United Workers' Union v Vopak Terminals Sydney Pty Ltd
[2022] FWC 350
•18 FEBRUARY 2022
| [2022] FWC 350 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
The United Workers' Union
v
Vopak Terminals Sydney Pty Ltd
(B2022/68)
| COMMISSIONER CAMBRIDGE | SYDNEY, 18 FEBRUARY 2022 |
Application for a Majority Support Determination.
On 10 February 2022, the United Workers' Union (the UWU) made an application to the Fair Work Commission (the Commission) for a Majority Support Determination. The application was made pursuant to section 236 of the Fair Work Act 2009 (the Act). The application sought a determination in respect to members of the UWU employed by Vopak Terminals Sydney Pty Ltd (the employer or Vopak Terminals Sydney) employed as operators, day operators, shift leaders and casual operators (including wharf hands) engaged at the site located at Site B Gate B47 20 Friendship Road, Port Botany NSW 2036 (the relevant employees).
The matter was listed for Mention and Directions by telephone before the Commission on 18 February 2022. At these proceedings the UWU was represented by Mr S Reside. The employer was represented by Mr J Donnelly, solicitor from National Workplace Lawyers who was granted permission pursuant to s. 596 of the Act, to appear on behalf of Vopak Terminals Sydney, and he appeared with Mr B Richards from Vopak Terminals Sydney.
Mr Reside referred to the application, which included a petition signed by numerous individuals who were asserted to be relevant employees who had signed the petition, as the grounds in support of the making of a Majority Support Determination. Mr Reside submitted that the petition clearly established that a majority of relevant employees sought to bargain for a proposed agreement.
Mr Donnelly raised two matters which he said required satisfaction if the application was to be granted and a Majority Support Determination made. Firstly, Mr Donnelly referred to the employer’s list of employees and he submitted that a clear majority of the relevant employees, being 22 individuals in total, would require at least 12 signatories of the relevant employees to be identified on the petition. Secondly, Mr Donnelly questioned whether the UWU had standing to make the application as there had been no evidence provided that any of the relevant employees were members of the UWU.
Mr Reside indicated that the Commission would be provided with further evidence that confirmed that at least one of the relevant employees was a member of the UWU. Mr Reside has subsequently forwarded to the Commission a Statement of Paul Richardson, the Director of Finance, Governance and Administration of the UWU, dated 17 February 2022 which, inter alia states; “I have reviewed the Union’s membership database and confirm that an undisclosed number of employees in the proposed group, are members of the Union.”
Having regard for the Statement of Paul Richardson the Commission has been satisfied that the UWU is a bargaining representative of at least one of the relevant employees and has standing to make the application for a Majority Support Determination.
Turning to the petition that has been provided by the UWU, the Commission has carefully examined the petition and compared it with the employer’s list of employees. Following this analysis, and having regard for all of the relevant circumstances, the Commission is satisfied that; (a) a majority of the relevant employees want to bargain, and (b), the employer has not yet agreed to bargain, and (c) the group that comprises the relevant employees has been fairly chosen taking into account the geographical, operational and organisational distinction of that group, and (d) that it is reasonable in all circumstances to make the Majority Support Determination. Therefore, the relevant requirements of ss. 236 and 237 of the Act have been met and the application must be granted.
Consequently, the Commission has separately issued a Majority Support Determination.
This Majority Support Determination operates on and from today, 18 February 2022.
COMMISSIONER
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