ENTERPRISE BARGAINING – majority support determination – s.236 Fair Work Act 2009 – application for a majority support determination – applicant relied on a petition signed by employees in May 2016 to establish a prima facie case – once respondent became aware of application it conducted a ballot of employees in June 2016 which provided three options – the result of the ballot was 30 votes against bargaining, 31 votes abstaining and 38 votes in favour of bargaining – respondent submitted the applicant posed the wrong question on the petition and that some employees may have signed the petition without it having been explained – respondent submitted that its ballot should be preferred over the applicant’s petition, as it was more recently conducted – respondent submitted that those who chose the option on the ballot of abstaining from voting should be taken to have elected against bargaining – employees not informed that a vote to abstain would be counted as a vote against bargaining – Commission of the view that it would be equally wrong to attribute a ‘no’ vote to all those who abstained as it would be to attribute a ‘yes’ vote to those who abstained – Commission also of the view that toolbox meetings conducted by the respondent were one-sided and did not fully inform employees of the facts – respondent submitted some employees who had signed the applicant’s petition had subsequently changed their minds – any ballot or petition only represents employee views at a particular point in time – Commission satisfied that time petition was taken by applicant represented the most appropriate time for determination of whether majority support for bargaining existed – Commission satisfied majority of employees support bargaining for an enterprise agreement – majority support determination made. Australian Workers’ Union, The v Kantfield P/L t/a Martogg & Company
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