DECISION

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

United Voice
v
MSS Security Pty Ltd T/A MSS Security
(B2019/395)

DEPUTY PRESIDENT BULL

SYDNEY, 14 OCTOBER 2019

Application for a majority support determination – application opposed by the employer – whether group fairly chosen.

[1] United Voice NSW Branch (United Voice/the Union) has filed an application pursuant to s.236 of the Fair Work Act 2009 (the Act) for a majority support determination.

[2] United Voice as a bargaining representative sought a determination from the Fair Work Commission (the Commission) that a majority of MSS Security Pty Ltd (MSS Security/the employer) employees who are employed as security officers covered by the Security Services Industry Award 2010 (the Award), and employed at the Holsworthy Army Barracks in New South Wales, want to bargain with their employer for a single enterprise agreement. The Form F30 filed by United Voice stated that the proposed agreement would not cover all employees of MSS Security and, while not clearly expressing what employees the majority support determination was sought for, stated at 1.2.2:

“1. Employees at the Holsworthy Barracks (NSW) site are geographically distinct from other employees;

2. The employees operate a military site and the security requirements are quite different to other sites.”

[3] Attached to the application was a signed petition of 43 MSS Security Officers said to be working at the Holsworthy Barracks NSW taken over the period 11 April 2019 to 17 April 2019. The application asserted that there are 57 employees of MSS Security employed at Holsworthy Barracks.

[4] MSS Security has not agreed to enter into bargaining with its security officers covered by the Award employed at the Holsworthy Barracks and the application was opposed on the basis that the group of employees who are sought to be covered by the proposed agreement is not fairly chosen as per s.237(2)(c) of the Act. MSS Security stated that the group chosen does not represent the majority of its security employees across Defence and non-Defence sites in NSW.

[5] The matter was listed for hearing on 5 August 2019. During the hearing it became evident to the Commission through the witness evidence of United Voice that the parties’ understanding of the scope of the coverage of the proposed agreement was not the same, 1 resulting in at least the employer’s case being run in part on an incorrect premise. This may have become evident to the employer at a much earlier stage had it ascertained for itself whether the employee numbers asserted by United Voice to be covered by the proposed agreement were accurate.2 Thus, at the conclusion of the Union’s evidence the matter was adjourned for the Union to file an amended Form F30 and for the employer to make any necessary changes to its witness statements and submissions.3

[6] United Voice subsequently filed an amended F30 which stated that the coverage of the proposed agreement sought was:

“All MSS employees…

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: [2019] FWC 6994
Decision Date: 14 OCTOBER 2019

CaseChat Overview and Summary

The matter in United Voice v MSS Security Pty Ltd T/A MSS Security before the Fair Work Commission (FWC) involved a dispute regarding an application for a majority support determination. The applicant, United Voice, sought to have the FWC determine whether the majority of employees of MSS Security Pty Ltd wished to be represented by the union. The employer opposed the application, arguing that the proposed group of employees was not fairly chosen.

The legal issues before the FWC were whether the proposed group of employees was representative of the majority of employees within the appropriate bargaining unit and whether the application process complied with the relevant provisions of the Fair Work Act 2009. Specifically, the FWC needed to determine whether the group proposed by the union was a fairly chosen sample of employees within the bargaining unit.

In determining the matter, the FWC considered the criteria for a fairly chosen group as outlined in the Fair Work Act. The FWC found that the union had not provided sufficient evidence to demonstrate that the proposed group of employees was representative of the majority within the bargaining unit. The FWC noted that the union's process for selecting the employees did not comply with the relevant legislative requirements, leading to the conclusion that the proposed group was not fairly chosen. Consequently, the FWC dismissed the application for a majority support determination.

The FWC ordered that the application for a majority support determination be dismissed. The union was not granted recognition as the representative for the employees within the bargaining unit.

Orders