DECISION

Fair Work Act 2009
s.236—Majority support determination

United Workers’ Union
v
Life-Space Group Pty Ltd
(B2021/697)

COMMISSIONER BISSETT

MELBOURNE, 6 OCTOBER 2021

Application for a majority support determination – employer does not agree to bargain – application dismissed.

[1] The United Workers’ Union (UWU) has made an application pursuant s 236 of the Fair Work Act 2009 (FW Act) for a majority support determination in relation to employees of Life-Space Group Pty Ltd (Respondent) who are employed by the Respondent to perform production and warehousing duties (the employees) at its premises at 6 McArthur Street, West Footscray, in Victoria.

[2] The Applicant seeks a majority support determination confirming that a majority of the employees who will be covered by the proposed agreement, want to bargain with the Respondent.

LEGISLATIVE REQUIREMENTS

[3] Sections 236 and 237 of the FW Act state:

236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(2) The application must specify: (a) the employer, or employers, that will be covered by the agreement; and

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

237 When the FWC must make a majority support determination

Majority support determination

(1) The FWC must make a majority support determination in relation to a proposed single-enterprise agreement if:

(a) an application for the determination has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which the FWC must be satisfied before making a majority support determination

(2) The FWC must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by the FWC; and

(ii) who will be covered by the agreement;

want to bargain; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(d) it is reasonable in all the circumstances to make the determination.

(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation…

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: [2021] FWC 6051
Decision Date: 6 OCTOBER 2021

CaseChat Overview and Summary

The matter before the court involved an application by the United Workers' Union seeking a majority support determination in relation to a bargaining agent under the Fair Work Act 2009. The Life-Space Group Pty Ltd opposed the application, contending that the union did not have the support of a majority of the relevant employees. The application was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the union had demonstrated that it had the support of a majority of the relevant employees, thereby warranting the grant of a majority support determination. The court had to assess the evidence provided by both parties and determine the appropriate legal standards for establishing majority support, including the relevance of the employer's refusal to recognise the union as a bargaining agent.

The court found that the union had not provided sufficient evidence to establish that it had the support of a majority of the employees. In reaching its decision, the court noted that the employer's refusal to recognise the union as a bargaining agent was a relevant factor. The court held that the union's failure to provide adequate evidence of majority support, coupled with the employer's refusal to acknowledge the union's authority, was sufficient grounds to dismiss the application. The court concluded that the union had not met the burden of proof required to secure a majority support determination.

The court dismissed the application and made no orders for costs. The union's application for a majority support determination was denied, leaving the bargaining agent status of the union with the Life-Space Group Pty Ltd unresolved.

Orders