Union fails in attempt to get employer to the bargaining table

The United Workers’ Union has failed to convince the Fair Work Commission to issue a majority support determination that would have compelled an employer to commence enterprise bargaining negotiations with the union to cover a portion of their workforce.

Under sections 236 and 237 of the Fair Work Act 2009, a bargaining representative can apply to the Commission to seek a determination on the basis that a majority of employees who will be covered by the proposed agreement want to bargain with the employer. These provisions apply only to single-enterprise agreements.

The case, before Commissioner Michelle Bisset, involved the United Workers’ Union (UWU) and Life-Space Group Pty Ltd. The union was seeking to negotiate an agreement for employees engaged to perform manufacturing and warehousing duties at the company’s factory in Footscray, Victoria.

A UWU Industrial Organiser visited the factory on at least five occasions between March and May 2021 to talk to employees and claimed to have gained new members who wished to negotiate an agreement. On 10 May 2021, he wrote to the employer claiming that he had majority support from the relevant workforce and sought agreement to bargain.

The employer responded by informing the union that they did not wish to bargain.

The employer relied on discussions with employees and the results of several surveys where employees had been asked to indicate whether or not they wished to remain on their current independent employer arrangements or seek to negotiate an enterprise agreement. They also referred to the feedback they received from employees who were unhappy with the direction the UWU had taken by moving away from concerns raised around potential redundancies to instead focusing on enterprise bargaining.

They did advise the UWU that they were prepared to negotiate with the union but not before March 2022.

Referring to previous case law, Commissioner Bisset noted that the major decision the Commission faces in assessing whether a majority of employees wish to bargain is to review the most current information available concerning the workforce.

As she noted,

“The most current material available to the Commission is the result of a secret ballot the Respondent conducted of the relevant employees on 22 September 2021. This result clearly indicates that of the 24 employees concerned, 7 employees wished to bargain and 17 employees voted against bargaining. This is to be contrasted with the petition of the UWU, which 17 employees signed on 27 April 2021 and 5 May 2021 indicating they wished to bargain”.

In her view, there was a strong suggestion that the employees’ enthusiasm for the UWU to negotiate on their behalf “appears to have waned considerably over the period to late September”.

Consequently, the Commissioner dismissed the application for a majority support determination.

United Workers’ Union v Life-Space Group Pty Ltd (B2021/697) 6 October 2021

For questions about unions, enterprise bargaining, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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