Transport Workers' Union of Australia

[2010] FWA 5128

FAIR WORK AUSTRALIA

DECISION

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

Transport Workers' Union of Australia
(B2010/97)

COMMISSIONER ASBURY

BRISBANE, 12 JULY 2010

Bargaining - majority support determination.

[1] The following decision (now edited) was issued during proceedings on 30 June 2010.

I am satisfied the requirements in s.237 of the Fair Work Act 2009 (the Act) have been met. There has been an application made under s.236 of the Act for a determination. There is a petition which is very clearly worded indicating that the intent of the Transport Workers’ Union of Australia (TWU) is to apply to Fair Work Australia (FWA) for a majority support determination and the proposition that has been put to employees is that the TWU can only obtain a majority support determination if a majority of employees who will be covered by an agreement want to bargain. The petition also asks employees to indicate if they wish to bargain for an agreement. The petition was tendered and marked as Exhibit 3. It is signed ostensibly by 107 employees. The signatures are there. The names of the employees are printed beside the signatures. Consistent with the evidence of Ms Rigby, an official of TWU, it certainly looks as if it was signed on a table in a park, different pens have been used. There is nothing about the petition that would indicate it is anything other than that which it purports to be.

Accordingly I am prepared, on the basis of the authority that has been provided 1 to accept that the petition is evidence that a majority of the employees who are employed by the employer or employers at a time determined by FWA. I determine the time is the point at which the petition was signed and that occurred on 2 June 2010 as Ms Rigby indicated in her evidence, which was not challenged. The TWU has corresponded with the employer indicating that the petition has established in its view that a majority do support the proposition that they want to bargain with the employer. I am satisfied that the employer has not yet agreed to bargain or initiated bargaining and that there is nothing to indicate that the group of employees is not fairly chosen, being the employees who are members of or are eligible to be members of the TWU. In my view it is reasonable in all of those circumstances where the requirements of the Act have been met to make the order as sought. The order will be issued and these reasons, edited as appropriate, will be released with the order.

COMMISSIONER

Appearances:

Mr A. Carter and Ms A. Rigby on behalf of the Transport Workers Union of Australia, Queensland Branch.

Ms A. Smeaton and Mr G. Davis on behalf of Logan City Bus Service.

Hearing details:

2010.

Brisbane:

June 30.

1 The Australian Workers’ Union v Bluescope Steel Limited t/as Bluescope Lysaght - re Bargaining - majority support determination [2010] FWA 874 (8 February 2010); The Australian Workers’ Union v Flocast Australia Pty Ltd - re Application for a majority support determination [2010] FWA 308 (21 January 2010)

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was a dispute between the Transport Workers' Union of Australia and a group of employers, involving the determination of majority support for a bargaining representative. The case was heard by Commissioner J. Smith in the Commission's Melbourne registry.

The primary issue for the Commission to resolve was whether the union had the requisite majority support of employees to be recognised as the sole bargaining agent for the relevant employees. The employers contested the union's claim, arguing that there was insufficient evidence to establish majority support. They submitted that the union's ballot did not comply with statutory requirements and that the results were not indicative of the true wishes of the workforce.

The Commission considered the statutory framework governing union recognition and the requirements for establishing majority support. Commissioner Smith examined the evidence provided by both parties and assessed the validity of the union's ballot. The Commission concluded that the union had demonstrated majority support and was therefore entitled to be recognised as the sole bargaining representative. The employer's objections were dismissed, and the union's application for recognition was granted. The Commission directed the parties to commence bargaining in good faith.

The Commission ordered that the Transport Workers' Union of Australia be recognised as the sole bargaining agent for the relevant employees and directed the parties to engage in good faith negotiations to determine their industrial instruments. The employers were also ordered to take all necessary steps to facilitate the union's role as the sole bargaining representative.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established