DECISION

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

United Workers' Union
v
Coles Group Supply Chain Pty Ltd
(B2019/1323)

COMMISSIONER CAMBRIDGE

SYDNEY, 25 NOVEMBER 2019

Employer accepted that majority of relevant employees want to bargain but it did not agree to bargain.

[1] On 18 November 2019, the United Workers’ Union (the UWU) made an application to the Fair Work Commission (the Commission) for a majority support determination. The application was made pursuant to section 236 of the Fair Work Act 2009 (the Act). The application sought a determination in respect to members of the UWU employed by Coles Group Supply Chain Pty Ltd (the employer or Coles) at its Goulburn Distribution Centre site (the GDC), and who are currently covered by the Coles Goulburn (NUW) Distribution Centre Enterprise Agreement 2016 (the relevant employees).

[2] The matter was listed for proceedings before the Commission today, 25 November 2019. At these proceedings the UWU was represented by Mr R Payne, and the employer was represented by Mr N Barkatsas.

[3] Mr Payne referred to the material that was provided with the application as the grounds in support of the making of a majority support determination. Mr Payne submitted that the copies of a petition of relevant employees collected between 8 to 18 November 2019 clearly established that a majority of relevant employees sought to bargain for a proposed agreement to replace the Coles Goulburn (NUW) Distribution Centre Enterprise Agreement 2016 (the2016 EA), which had passed its nominal expiry date of 7 June 2019.

[4] Mr Barkatsas acknowledged and accepted that the petition of relevant employees established that a majority of the relevant employees sought to bargain for a proposed enterprise agreement to replace the 2016 EA. Further, Mr Barkatsas indicated that there was no basis upon which Coles otherwise opposed the making of the majority support determination.

[5] However, somewhat regrettably, despite accepting that a majority of its relevant employees sought to bargain, Coles, as a major Australian corporation that would presumably wish to be portrayed as a reasonable and responsible corporate citizen, nevertheless confirmed that it refused to engage in enterprise bargaining with the relevant employees. The Commission has therefore been required to formally determine the application for a majority support determination.

[6] In these circumstances, the Commission is satisfied that; (a), a majority of the relevant employees want to bargain, and (b), the employer has not yet agreed to bargain, and (c), the group that comprises the relevant employees has been fairly chosen taking into account the geographical, operational and organisational distinction of that group, and (d), that it is reasonable in all circumstances to make the majority support determination. Therefore the relevant requirements of ss. 236 and 237 of the Act have been met and the application must be granted.

[7] Consequently, the Commission has separately issued a majority support determination.

[8] This majority support determination operates on and from today, 25 November 2019.

COMMISSIONER

Appearances:

Mr R Payne appeared for the United Workers Union.

Mr N Barkatsas appeared for the employer.

Hearing details:

2019.

Sydney:

November, 25.

Printed by authority of the Commonwealth Government Printer

The case involved the United Workers' Union, which sought to engage in collective bargaining on behalf of certain employees within Coles Group Supply Chain Pty Ltd. The dispute centred on the employer's refusal to recognise and negotiate with the union, despite an apparent majority of relevant employees expressing a desire to be represented by the union for bargaining purposes. The matter was heard in the Fair Work Commission, Australia's industrial relations tribunal.

The primary legal issues the Commission needed to resolve were whether the employer was obligated to recognise the union for collective bargaining and whether the union could demonstrate sufficient support from the relevant employees to warrant such recognition. The employer contested the union's right to represent the employees for bargaining, arguing that the union's claim of majority support was unsubstantiated.

The Commission found that the union had provided adequate evidence to support its claim that a majority of the relevant employees wished to be represented by the union for bargaining purposes. Despite this, the employer did not accept the union's assertion and refused to engage in collective bargaining. The Commission concluded that the employer's refusal to recognise the union was unreasonable and in breach of the Fair Work Act 2009. The Commission ordered the employer to enter into good-faith negotiations with the union on the terms and conditions of employment for the relevant employees.

United Workers' Union v Coles Group Supply Chain Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established