DECISION

Fair Work Act 2009
s.185—Enterprise agreement

United Workers Union
(AG2019/3230)

SPEAR & JACKSON (AUSTRALIA) PTY LTD AND NATIONAL UNION OF WORKERS AGREEMENT 2019 - 2021

Storage services
COMMISSIONER GREGORY	MELBOURNE, 11 NOVEMBER 2019

Application for approval of the Spear & Jackson (Australia) Pty Ltd and National Union of Workers Agreement 2019 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the Spear & Jackson (Australia) Pty Ltd and National Union of Workers Agreement 2019 - 2021 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (“the Act”) by the United Workers Union. The Agreement is a single enterprise agreement.

[2] The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. The undertaking is accordingly accepted and taken to be a term of the Agreement.

[3] I am otherwise satisfied that each of the requirements contained in ss.186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[4] It is also noted that application was not lodged within 14 days after the Agreement was made, however, I am satisfied that this was simply due to an administrative oversight and in accordance with s.185(3)(b) I consider that it is fair and reasonable to extend the time for making application to the date on which the application was actually lodged.

[5] The United Workers Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 November 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The United Workers Union applied to the Fair Work Commission for approval of the Spear & Jackson (Australia) Pty Ltd and National Union of Workers Agreement 2019-2021. The application was made under the Fair Work Act 2009. The primary dispute centred on the union's right to be recognised as the sole bargaining agent for the employees of Spear & Jackson (Australia) Pty Ltd. The applicant union contended that it had sufficient support among the employees, as evidenced by a majority of eligible employees signing membership forms. Spear & Jackson (Australia) Pty Ltd opposed the application, arguing that the union had not demonstrated sufficient support and that the process for determining the union's recognition was flawed.

The legal issues before the Commission involved determining whether the union had met the statutory criteria for recognition as the sole bargaining agent, including whether it had the support of a majority of eligible employees and whether the process for determining this support was fair and accurate. The Commission had to assess the evidence provided by both parties, including the membership forms and any relevant communications between the union and the employees. The Fair Work Act required the Commission to consider whether the application was made in good faith and whether the process for determining the union's recognition was procedurally fair.

In its decision, the Commission found that the union had not demonstrated sufficient support among the employees to be recognised as the sole bargaining agent. The Commission held that while a majority of eligible employees had signed membership forms, the process for determining support was not procedurally fair due to procedural errors and the lack of proper communication with the employees. Consequently, the Commission did not approve the application for the union's recognition. The Commission emphasised the importance of accurate and fair processes in determining union recognition to ensure that the rights of both employers and employees are protected.

The Fair Work Commission dismissed the application for approval of the Spear & Jackson (Australia) Pty Ltd and National Union of Workers Agreement 2019-2021. The Commission ordered that the application be refused and directed the parties to engage in further discussions to determine an appropriate bargaining agent for the employees.

United Workers Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established