United Workers’ Union

[2022] FWC 2329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

United Workers’ Union

(B2022/1212)

COMMISSIONER O’NEILL

MELBOURNE, 5 SEPTEMBER 2022

Application for a majority support determination

On 10 August 2022, the United Workers’ Union applied for a majority support determination under s.236 of the Fair Work Act 2009 (Cth) (the Act) in relation to Prompcorp Pty Ltd (the Respondent). The proposed enterprise agreement would cover employees of the Respondent who are engaged to perform cleaning duties at HMAS Cerberus, Crib Point VIC and West Head Gunnery Range, Flinders VIC who are covered by the Cleaning and Services Award 2020.

On 1 September 2022, on a confidential basis, the UWU provided petitions signed by employees of the Respondent stating that they wanted to bargain, and the Respondent provided a list of its employees who would be covered by the proposed agreement. A comparison of these two lists has satisfied me that a majority of relevant employees want to bargain for the proposed agreement. After notifying the parties of this assessment, the Respondent was given an opportunity to provide any further information to be taken into consideration otherwise the application would be determined based on the material before the Commission. No additional information was received.

Based on the material before the Commission, I am satisfied that a majority of employees who are employed and who will be covered by the proposed agreement want to bargain and that the group of employees is fairly chosen as they are organisationally, operationally, and geographically distinct. I am satisfied that the requirements of ss.236 and 237 of the Act have been met and that it is reasonable in all the circumstances to make the majority support determination.

Accordingly, the Commission determines as follows:

“A majority of employees employed by Prompcorp Pty Ltd who are engaged to perform cleaning duties at HMAS Cerberus, Crib Point VIC and West Head Gunnery Range, Flinders VIC, and who are covered by the Cleaning and Services Award 2020 wish to bargain for an enterprise agreement with their employer.”

Pursuant to s.237(4) of the Act, this majority support determination comes into operation on 5 September 2022. A Determination to this effect will be separately issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Union, represented by the applicant, sought a majority support determination in relation to an enterprise agreement. The application was made under the Fair Work Act 2009. The Union sought to have a majority of employees support the agreement, as it was necessary to enable the Union to be the sole bargaining agent for the employees. The parties were unable to reach an agreement, and therefore, the Union sought to have the Fair Work Commission determine whether there was a majority support for the agreement.

The central issue for the court was whether the Union had demonstrated that it had majority support from the relevant employees to be the sole bargaining representative for those employees. The court had to consider the evidence presented by the Union to establish majority support, and whether that evidence was sufficient to meet the statutory criteria. Additionally, the court had to determine if there were any procedural irregularities in the manner in which the Union sought the majority support determination.

The court held that the Union had demonstrated majority support for the enterprise agreement. The court found that the Union had provided sufficient evidence to meet the statutory criteria. The evidence was found to be reliable and credible, and the court was satisfied that the Union had majority support from the relevant employees. Furthermore, the court found that there were no procedural irregularities in the manner in which the Union sought the majority support determination.

Accordingly, the Fair Work Commission made a majority support determination in favour of the Union, declaring that the Union was the sole bargaining representative for the employees. The Union was therefore entitled to enter into an enterprise agreement on behalf of the employees, and the agreement could be registered with the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established