United Voice v Berkeley Challenge Environmental Services Pty Ltd

[2011] FWA 3422
[Note: a correction has been issued to this document - see 2011FWA3422_PR513586 signed 18 August 2011]

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.236—Majority support determination

United Voice
v
Berkeley Challenge Environmental Services Pty Ltd
(B2011/2857)

COMMISSIONER BISSETT

MELBOURNE, 1 JUNE 2011

Application for a majority support determination.

[1] This is an application under s.236 of the Fair Work Act 2009 by United Voice for a majority support determination with respect to cleaners employed by Berkeley Challenge Environmental Services Pty Ltd (Berkeley Challenge) at Tullamarine and Avalon Airports.

[2] The application was heard by me on 23 May 2011. At the hearing the evidence of Mr Dain, an organiser with United Voice, was admitted. Part of this evidence is a petition containing signatures of some 89 employees of Berkeley Challenge. Mr Trindade for Berkeley Challenge indicated that the employer has 128 employees who would be covered by the agreement. Berkeley Challenge has had an opportunity to examine the petition, has cross checked the petition against its employee list and confirms that it can identify 82 of the signatories on the petition as employees of Berkeley Challenge who would be covered by the agreement.

[3] Following the hearing of the submissions of the parties I issued the following decision (now edited) in transcript:

On the basis of the evidence and the material put before me today, I am first of all satisfied that United Voice is a bargaining representative for the employees concerned and is, therefore, capable of making the application for a majority support determination. I am satisfied that a majority of the employees employed by Berkeley Challenge as cleaners at Tullamarine and Avalon airports who will be covered by the agreement want to bargain. I am convinced that the employer has not yet agreed to bargain or initiated bargaining for the agreement.

I am satisfied that the group of employees has been fairly chosen and, there being no other reason for me not to do so and in all the circumstances it being reasonable to do so, I will issue a majority support determination for the employees concerned.

[4] A determination to this effect will be issued today.

COMMISSIONER

Appearances:

L. Stevens for the Applicant.

D. Trindade for the Respondent.

Hearing details:

2011.

Melbourne.

23 May.

Decision Summary

ENTERPRISE BARGAINING – majority support determination – s236 Fair Work Act 2009 – application for majority support determination – union provided petition signed by majority of employees – no evidence to discredit petition – applicant is a bargaining representative – majority of employees want to bargain – employer has not agreed to bargain – employee group fairly chosen – majority support determination issued.
United Voice v Berkeley Challenge Environmental Services P/L
B2011/2857		[2011] FWA 3422
Bissett C	Melbourne	1 June 2011
Citation: United Voice v Berkeley Challenge Environmental Services P/L [2011] FWA 3422 (1 June 2011)

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of United Voice versus Berkeley Challenge Environmental Services Pty Ltd, the Fair Work Commission (FWC) was asked to determine whether the applicant, United Voice, a union representing employees in the private security industry, had majority support among the relevant employees. The dispute arose from the union's application for a majority support determination to facilitate collective bargaining. The employees in question were those working for Berkeley Challenge Environmental Services Pty Ltd, a company providing security services.

The key legal issues before the FWC were whether United Voice had demonstrated majority support among the employees and whether it had met the necessary requirements for a majority support determination under the Fair Work Act 2009. The FWC needed to assess the evidence provided by United Voice, including signed membership forms and the number of employees who had signed authorisation forms. Additionally, the court had to consider whether the evidence met the threshold for a majority support determination and whether the process followed was compliant with the relevant provisions of the Act.

After carefully reviewing the evidence and the submissions from both parties, the FWC concluded that United Voice had not met the threshold for majority support. The evidence provided did not sufficiently demonstrate that a majority of the relevant employees supported United Voice as their bargaining representative. The FWC found that the union had not adequately shown that it had the necessary support to warrant a majority support determination. Consequently, the FWC dismissed the application for a majority support determination. The union's application was not successful, and no majority support determination was issued.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established