Fair Work Act 2009

s.236 - Application for a majority support determination

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Application for a majority support determination - employer does not agree to bargain - whether a majority of employees want to bargain - application dismissed.

• [1] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) - South Australian Branch (188V-SA) (AMWU) made an application pursuant to s 236 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (Commission) on 12 May 2025 for a majority support determination (MSD) concerning a group of employees employed by BAE Systems Australia (BAE).

• [2] The AMWU have proposed an enterprise agreement that would cover employees of BAE who are based at 640 Mersey Road North in the state of Southy Australia and who supervise (the Supervisors) employees covered by the BAE Systems Maritime Australia (Osborne) Enterprise Agreement 2021-2024 (or any replacement agreement) .

• [3] Arising from a Directions Conference held by Deputy President Hampton on 27 May 2025, directions were issued by the Deputy President for the filing of material by the AMWU and BAE dealing with preliminary matters including, the scope of BAE supervisors captured by the application, the AMWU's capacity to enrol and represent supervisors within the scope of coverage of the proposed agreement and whether the AMWU had any members in the relevant supervisor cohort. The AMWU was also required to file redacted and unreacted copies of the petition (the Petition) it had undertaken while BAE was required to file a redacted and unredacted list of employees engaged as of 17 April 2025 within the scope of coverage of the proposed Agreement.

• [4] Following the filing of the material in response to the above-referred directions, Deputy President Hampton issued a Report on 25 June 2025 which relevantly summarised a comparison of the Petition and employee lists filed by the parties as follows;

"[9] A comparison of the material reveals the following:

(c) The combined petitions were signed by 48 persons.

(d) There were 64 employees on the employee list provided by BAE.

(e) 43 employee names clearly appear on the petitions and the employee list - 39 on the AMWU petition and 4 on the CEPU petition.

(f) There are 5 names on the petitions that were not identified on the list of employees provided by BAE - 3 on the AMWU petition and 2 on the CEPU petition."

• [5] The matter was then listed for a report back conference before Deputy President Hampton on 8 July 2025. As many of the statutory requirements remained in dispute at that point, the Deputy President issued directions on 9 July 2025 for the filing of material by the AMWU and BAE in relation AMWU's application. The matter was subsequently allocated to my Chambers on 11 August 2025 for determination of the MSD application, amendments to the Directions were made and the matter was listed for hearing in Adelaide on 23 & 24 October 2025.

• [6] At the hearing, the AMWU was represented by its Industrial Officer Mr P Rocconi. Evidence from the following witnesses, who were not required for cross-examination, was relied on in the proceedings by the AMWU;

• Daniel Ramm - Organiser for the CEPU SA Branch
• John Short - Project officer for the AMWU
• Jonathon Lambropoulos - Project Officer for the AMWU
• Paul Williamson - BAE Supervisor (Piping)

• [7] Ms Erin Hawthorne of Seyfarth Shaw was granted permission to appear pursuant to s 596(2)(a) of the Act. BAE relied on evidence from the following witnesses who were also not required for cross-examination;

• Mark Peter Benfield - BAE Trade and Capability Manager
• Eden-Jade Daniels Panozzo - BAE Communications Advisor

• [8] The evidence of Mr Lambropoulos and Mr Short established the following in respect of the conduct of the Petition;

• • Various discussions were held by Mr Short with some Supervisors between late 2024 and February 2025 for the purpose of identifying the number and identity of Supervisors and providing an understanding of the nature of industrial claims that were important to Supervisors[1].

• • In February 2025, Mr Lambropoulos and Mr Short commenced discussions with as many Supervisors as possible to assess whether there was support for enterprise bargaining. This was done by Mr Lambropoulos and Mr Short making themselves available at a café near BAE's Osborne operations or meeting Supervisors at a different offsite location. Supervisors typically attended these meetings in small groups of 2-3[2].

• • When discussing the matter with Supervisors, Mr Lambropoulos and Mr Short say they typically explained various matters, including the process of enterprise bargaining; that the AMWU would ask BAE to bargain with it and that the AMWU would need evidence of Supervisor support for bargaining[3]. Mr Lambropoulos understood from those discussions that the main concern of Supervisors were; negotiating pay increases rather than receiving increases through salary review, maintaining wage relativity above those persons that they supervise, and being paid for overtime rather than it being an incorporated component of their salary[4].

• • Mr Lambropoulos and Mr Short state they were careful not to make any commitments or representation concerning the form of any enterprise agreement as they understood that an enterprise agreement was the product of bargaining. Supervisors who spoke with Mr Lambropoulos and Mr Short were also free not to sign the Petition[5].

• • Mr Short says he also explained to Supervisors that the AMWU would work with them to develop a log of claims and that if an enterprise agreement was made that covered them, the enterprise agreement would be the source of terms and conditions and that the terms would be those voted up in any successful ballot. He says he also explained the award safety net of conditions, but the goal would be to bargain for better than that[6].

• • Mr Short understood that the Supervisors he spoke with were familiar with enterprise bargaining, they currently supervise employees covered by an enterprise agreement and had been covered by an enterprise agreement before promotion to a Supervisor role at BAE[7].

• • The process of discussions with Supervisors and gathering signatures on the Petition, commenced in or about late February 2025 and was ongoing on 23 June 2025.The last signatures on the petition produced to the Commission on 23 June 2025, were obtained on 19 June 2023[8].

• • Since commencement of the Petition, it has remained under the control of an AMWU officer and Mr Lambropoulos and Mr Short recorded in pencil against each signature, their initials to indicate who witnessed each Supervisor sign the Petition[9].

• • Mr Short states it took a few months to collect the signatures between February and June 2025 as he and Mr Lambropoulos only had a brief time window each day within which to meet Supervisors at the coffee shop or other location[10].

• [9] Mr Ramm's evidence may be summarised as follows;

• • In late March, Mr Short contacted Mr Ramm and advised him of the AMWU seeking to assist Supervisors at BAE commence negotiations with BAE and requested Mr Ramm's assistance[11].

• • Mr Ramm met with several Supervisors in the April-June 2025 period. During those discussions he ascertained that Supervisors wanted to establish and maintain wage relativity between themselves and workers they supervised as well as terms that better facilitates overtime because of the view of the Supervisors that they were not being paid for overtime because of the nature of their salary arrangements.[12]

• • Mr Ramm discussed the potential benefits of enterprise bargaining with Supervisors with whom he met, explained a number of matters including the process for securing an MSD and why an MSD may be necessary; that the Petition would be used as evidence of their support for the commencement of bargaining and that if an MSD were issued by the Commission, BAE would have to bargain with Supervisors for an enterprise agreement[13]. Supervisors were also free not to sign the Petition. The CEPU Petition remained under the control of Mr Ramm throughout the period signatures were being gathered[14].

• • According to Mr Ramm, it was unnecessary for him to go into much detail with Supervisors around the precise process and nature of an enterprise agreement, as he understood they were quite familiar with that process having been covered by an enterprise agreement when they were working as electricians[15].

• • Since the provision of the CEPU Petition on 23 June 2025, Mr Ramm has obtained an additional signature and states that this individual was a Supervisor as of 17 April 2025[16].

• [10] Mr Williamson who is employed by BAE as a Supervisor in the piping area gave evidence in relation to his role, his attitude towards bargaining, his discussions with Mr Lambropoulos and Mr Short and his understanding of enterprise bargaining. That evidence may be relevantly summarised as follows;

• • Prior to being promoted to a Supervisor role he was engaged as a tradesman, received a wage and was covered by an enterprise agreement. On becoming a Supervisor, he entered into a new employment contract that provided for a Total Annual Package (TAP) expressed as a single figure that includes a base salary, an amount intended to cover annual leave loading, other penalties and superannuation[17].

• • Salaried employees of BAE, including Supervisors, are paid according to a grading system under which Supervisors are Grade 7. Each grade has a salary band that expresses upper and lower limits. Like other salaried employees, Supervisors salary increases flow from an annual salary review which is also informed by a rating received through the annual performance review process[18].

• • Mr Williamson held strong reservations about being engaged under a salaried contract since 2021. He maintained a consistent preference for an enterprise agreement for several reasons, including that; he considered it a fairer way to negotiate and set pay rates for himself and his colleagues, that the relativity in pay rates between Supervisors and employees they supervised had been eroded over time, the TAP includes multiple components which makes it hard to assess what his actual base pay is; and that he and his colleagues are unaware of the salary bands which makes it difficult to understand where Supervisors sit in those bands. He says these matters were at the forefront of his thinking when he signed the Petition[19].

• • Mr Williamson was contacted by Mr Short in October 2024 following which he had numerous interactions with him and was part of a group that provided their views to Mr Short. The logistics of consulting with the broader cohort of Supervisors was also discussed with Mr Short. Along with a few other Supervisors, he met with Mr Short and Mr Lambropoulos in February 2025 and were the first to sign the Petition. He says he was aware of what the Petition represented when he signed it and understood it would be used as evidence in support of an MSD[20].

• • Mr Williamson understood that the AMWU would ask BAE to initiate bargaining for an enterprise agreement covering Supervisors of the production workforce at Osborne; and if they did not agree to bargain, the AMWU would seek an MSD. He understood that this involved an application to the Commission, which if successful, would then require BAE to initiate bargaining. In signing the Petition, Mr Williamson understood that the Petition would be used as evidence that he and his colleagues who also signed it, supported bargaining for an enterprise agreement[21].

• • Mr Williamson says he was familiar with the process of enterprise bargaining, having previously been covered by multiple enterprise agreements when working as a tradesman and having supervised employees at BAE who are covered by an enterprise agreement. He also opined that almost all Supervisors at BAE have been at least at one point in time a 'blue collar' trade, production or operations employee covered by an enterprise agreement[22].

• • On around 4 July 2025, Mr Williamson spoke with his Trade Manager who asked Mr Williamson whether he understood the Better Off Overall Test (the BOOT) undertaken by the Commission when considering approval of an enterprise agreement. Mr Williamson did not understand what the BOOT was at the time but now understands it is a statutory test that requires a comparison of the proposed enterprise agreement with the relevant award/s[23].

• Mr Williamson continues to support the objective of entering enterprise bargaining with BAE.

• [11] The Petition of the AMWU and CEPU contained the following relevant information on the Petition sheet;

"I want to bargain for an enterprise agreement with BAE Systems Australia for Production Supervisors at Osborne

I agree to this petition being provided to the Fair Work commission to prove that employees who work in South Australia have signed this petition and want to bargain for an enterprise agreement.

The names of people who sign this petition will be kept confidential from management at BAE Osborne."

AMWU request for BAE to commence enterprise agreement negotiations

• [12] On 16 April 2025, Assistant State Secretary of the AMWU, Mr Mark Plunkett, sent a letter[24] to Ms Carly Fowler of BAE advising that the AMWU was acting as bargaining agent for members employed as Supervisors by BAE who wished to commence bargaining for an enterprise agreement to cover them. Mr Plunkett requested advice from BAE by 9 May 2025 whether they agreed to bargain for a proposed enterprise agreement. BAE replied to the AMWU correspondence on 9 May 2025[25] and in doing so did not agree to commence bargaining.

• [13] Mr Benfield who is currently BAE's Trades and Capability Manager - Electrical, states that he met with his electrical Supervisor group three times on 11 April, 22 May, and 12 June 2025 to allow them to express concerns they held about their remuneration and working conditions. He says he received general feedback that those Supervisors were content as salaried employees and with the TAP arrangements. He became aware in August 2025 that BAE would be running information sessions for Supervisors to provide them with information about enterprise bargaining and to discuss options to address specific concerns or frustration held by them[26]. Specific concerns raised in these sessions were around;

• Pay relativity with the trades/operations workforce;

• • Rostered day off (RDO). (collectively the Core Concerns)[27]

• [14] Two information sessions were conducted on 2 September 2025, and one session was conducted on 8 September 2025 by Stephen March and Mr Benfield. Mr Benfield states that he and Mr March explained during the sessions that they wanted to have a 'without prejudice' conversation about feedback received from the Supervisor group regarding the Core Concerns. Supervisors were advised that if Supervisors did not end up enterprise bargaining and remained on existing salaried arrangements, BAE would be willing to address the Core Concerns by;

• maintaining a minimum relativity of 122% above the Advanced Engineering Tradesperson Level 2 rate;

• aligning overtime with the Trades EA for all overtime hours; and

• ▪ alignment (ie the substitution) of RDOs that fall on a Friday public holiday with the Trades EA workforce.[28]

• [15] The sessions concluded by Mr Marsh and Mr Benfield explaining; that it was up to supervisors to decide if they were committed to engaging in enterprise bargaining, that enterprise bargaining was not the only way for Supervisors to have the Core Concerns addressed, that outside enterprise bargaining, BAE was willing to consider the Core Concerns and make meaningful changes, and that an anonymous survey asking Supervisors about their desire to bargain would be coming out via email.[29]

• [16] A survey of Supervisors was conducted by BAE, opening on 8 September and closing at 2.01pm on 9 September 2025. The survey was sent to the 79 employees who formed the Supervisor cohort on 8 September 2025[30]. The survey format used was SmartSurvey, which allowed participants to remain anonymous and was one that employees were familiar, with having been used in pervious BAE employee surveys[31]. An email[32] was sent to Supervisors on 8 September 2025, to which was attached an FAQ document[33]. The email link took Supervisors to the survey which had an introduction page[34], which included details of the without prejudice offer on the Core Concerns which had been discussed with Supervisors during September 2025 meetings. The email to Supervisors stated as follows;

Below is the link for the SMART survey that we discussed in the recent meetings. It will ask whether Supervisors would like to negotiate a new Enterprise Agreement or remain on the current Common Law Contract, with the three adjustments as listed in the survey.

With regards to the conversation about Shift Penalties, after some consideration, the Company's position remains unchanged (refer to paragraph 5 of the attached FAQ sheet).

The survey is completely anonymous and will be open for 24 hours, closing at 2.00pm on Tuesday 09 September 2025.

We encourage all of you to have your say as this will affect all Supervisors conditions moving forward.

Smart Survey Link - https://www.smartsurvey.co.uk/s/WV3K7Q/

Also, attached is the FAQ document that should answer any questions you may have regarding the negotiation process for a new Supervisor EA.

Please also speak to your Trade Manager or myself if you have any further questions.

• [17] The survey attracted 56 responses during the approximately 24-hour period. The survey responses were exported into a graphic format[35]. The questions posed and aggregate of responses received are as follows;

Are you happy to continue as a salaried employee if the additional without prejudice proposals are put in place/

Even if the without prejudice proposals were to be put in place, do you want to collectively bargain to have your employment conditions set in an enterprise agreement instead of your salaried arrangements?

• [18] The AMWU identified a number of concerns with the BAE survey which may be summarised as follows;

• the information provided by BAE falsely conveyed that bargaining would dramatically alter Supervisor employment arrangements;

• the questions posed furthered a false equivalency by framing the answers as based on whether employees wanted to remain salaried employees;

• there was a cohort of employees marked as unsure about their position in respect of BAE's questions, and it was considered appropriate to provide some further clarity on BAE's information put forward; and

• • it was unclear due to the BAE survey anonymity whether Supervisors who signed the Petition had changed their position.[36]

• [19] Because of the above-referred concerns the AMWU conducted a further survey via an online application called Formbricks. The format of the survey was as follows;

• an initial slide that provided the explanation for the survey;

• a further slide that provided further information and context from the AMWU regarding the enterprise bargaining proposal;

• a further slide providing an explanation for how personal data was to be collected;

• several slides collecting the responder's identifying information and confirming whether they are a BAE Supervisor; and

Do you want to bargain with BAE for an enterprise agreement that covers you?

to which a responder could check "Yes" or "No".[37]

• [20] The Survey included an introduction, an update on the unions' request to bargain, BAE's offer to vary contracts, and a series of FAQ's[38]. The survey was opened on 23 September 2025, and results were collated on 26 September 2025. The survey was distributed by Mr Lambropoulos via his phone to every person who had signed the Petition conducted by the AMWU and CEPU, and two additional persons who became Supervisors after 17 April 2025 and were not captured in the Petition. The message sent to survey participants was as follows;

The AMWU is continuing to fight for an enterprise agreement for BAE Osborne Supervisors.

The AMWU understands that BAE has put a proposal to Supervisors about contract variations.

The following link will provide an update on that and the AMWU's response to some of the points raised by BAE.

It also contains a survey where Supervisors can indicate whether they still support bargaining for an EA.

If you still want an EA, it is very important that you complete the survey and forward the link to any Supervisors that have not received it.

The survey will be live until 5:00PM Friday 26 Sept.

Please contact me on this number if you have any questions.

• [21] A single question was posed in the AMWU survey, that being "Do you want to bargain with BAE for an enterprise agreement that covers you?" There were 28 responses received, 23 of which responded "yes" to the question while "5" responded "no".

• [22] The relevant sections of the Act in relation to this application are sections 236 and 237. They set out the matters about which the Commission must be satisfied before making a majority support determination, in the following terms:

(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.

(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

(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

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

(c) that the group of employees who will be covered by the agreement was fairly chosen; 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.

(4) The determination comes into operation on the day on which it is made."

• [23] I will deal with each of the legislative requirements in turn.

• [24] It was not disputed that the AMWU has made an application for a majority support determination. In relation to the requirement under s.236(1), that the application is to be made by a bargaining representative of an employee who will be covered by a proposed single enterprise agreement, it was not contested that the AMWU, by virtue of s.176(1)(b) of the Act, is an employee organisation who is a bargaining representative of an employee who is a member of the AMWU.

• [25] I am satisfied that an application has been made by a bargaining representative of an employee who will be covered by the proposed agreement, namely, the AMWU (s.237(1)(a)).

Section 237(2)(a) - a majority of employees want to bargain

• [26] As set out above, s 237(2)(a), a necessary precondition for an MSD is that the Commission must be satisfied that 'a majority of the employees who are employed by the employer or employers at a time determined by the FWC and who will be covered by the agreement want to bargain'.

• [27] The task required by s 237(2)(a) is a two-step process and was described in Kantfield Pty Ltd v AWU[40] (Kantfield) in the following term;

"[35] The power to apply a time-based limitation is confined to section 237(2)(a)(i) and not section 237(2)(a) more broadly. That is, the power to apply a point-in-time limitation in section 237(2)(a)(i) is directed to fixing the time at which the FWC is to determine who are the persons employed only. Therefore, it does not confer a broader power to "fix" historical or future points in time for other aspects of 237.

"... there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker."

[37] Applying Peko-Wallsend, it follows that the decision as to whether a majority of employees want to bargain is to be made on the basis of the most current material available at the time of the decision. Having considered all of the submissions and authorities filed by the parties, we agree that it was not open to the Commissioner to determine a point in time other than the time of the decision as the time at which a majority of employees could be said to want to bargain. As such, we are not satisfied that it was open to the Commissioner to reach the determination that he reached."

• [28] Deputy President Colman in National Union of Workers v Lovisa Pty Limited[41] (Lovisa) helpfully summarised the correct approach to be applied when he said;

"[31] The point made here is that the Commission's power to determine a time is confined to the question of who are the persons employed by the employer at a particular time: that is, to fix by reference to time the cohort of employees from which the question of majority is to be determined. The Commission has a discretion to determine this date; but according to the Full Bench, it does not have a discretion to determine the date on which a majority wishes to bargain. Rather, it must assess this question as at the date of the decision, using the most recently available information......."

• [29] Turning to the first step set out by the Full Bench in Kantfield, I am required to determine the time at which the cohort of Supervisors is to be established. The AMWU submit that the relevant date on which the cohort is to be fixed should be 17 April 2025, that date being temporal with the AMWU's formal request to BAE on 16 April 2025 to commence bargaining with the AMWU and CEPU. BAE disagree with the AMWU's date selection and urge that a later date be fixed in light of the significant growth of the Supervisor cohort since 17 April 2025.

• [30] There appears to me to be a number of potential dates at which the cohort could be fixed. The 17 April 2025 is the earliest date, which I have already noted coincides with the formal bargaining request made to BAE. At that date there were 63 Supervisors. A further date that might be used is 23 June 2025, that being the date the Petition was filed in the Commission. There were 79 supervisors at that date. Finally, a date of 25 September 2025 might be selected, it being the same time as the completion of the AMWU survey. There were 83 Supervisors at that point.

• [31] Turning to the AMWU's preferred date of 17 April 2025, the logic to that date appears to be that it was temporally connected with the declined request made by the AMWU for BAE to commence bargaining. The date did not mark the point at which the AMWU and CEPU ceased gathering signatures for the Petition which continued up until the Petition was submitted to the Commission on 23 June 2025. As to the 25 September 2025, I regard that date as being too remote from the initiation of the Petition and collection of signatures by the AMWU and CEPU.

• [32] The above leads me to conclude that the relevant date to be set for the purpose of fixing the Supervisor cohort is to be 23 June 2025. That date holds a logic in that it coincides with the submission of the Petition to the Commission and also has regard to the significant growth of the Supervisor group after 17 April 2025. I note at this stage that unlike Lovisa in which the Deputy President confronted the issue of a large casualised workforce, the BAE Supervisor cohort is stable in the sense that it does not reveal the fluctuations in numbers that a casual workforce is more likely to experience.

• [33] Dealing now with whether I can be satisfied that a majority of Supervisors want to bargain, I accept the evidence of Mr Lambropoulos, Mr Short and Mr Ramm as to the conduct of the Petition between February and June 2023, during which they gathered 48 signatures. I accept that the Petition was conducted with integrity although there is limited evidence as to what was specifically stated to those Supervisors who signed the Petition. Each of the officials provides evidence going to the general rather than the specific content of the explanation provided to Supervisors. That is perhaps understandable, given the manner in which the Petition was gathered over some months through meetings with small groups of Supervisors.

• [34] The Petition holds 48 signatures that appear on the list of 79 Supervisors employed on 23 June 2025. While that may represent a majority at that time, Kantfield is authority for the proposition that it is necessary for the Commission to consider the most recent information available to it. That most recent information available includes the BAE Supervisor Survey conducted between 8-9 September 2025 and the AMWU Survey conducted between 23-26 September 2025. It is significant that both of these surveys were conducted in the immediate wake of meetings held by BAE with Supervisors in early September 2025, in which BAE put without prejudice proposals to Supervisors to address the Core Concerns raised during earlier meetings held with Supervisors.

• [35] Following the September 2025 Supervisor meetings, BAE rolled out the BAE Supervisor Survey which was anonymous and was supported by FAQ's including information on enterprise bargaining. The AMWU is critical of the survey information and questions asked in the survey. I understand that the key criticism is that the information and questions posed in the survey invite Supervisors to make a false choice between maintaining salaried arrangements or entering into bargaining. This, the AMWU submits, ignores the possibility that an enterprise agreement might contain minimum conditions above which salaried/staff conditions are preserved.

• [36] I do not accept the criticism advanced by the AMWU of the information or questions posed by BAE is valid. It presents a reasonable summary of what might flow from enterprise bargaining. See for example, the following.

• [37] At question 2 of the FAQs, it is stated that it is 'likely', albeit not inevitable, that it would be necessary to renegotiate all or most of the terms relevant to Supervisor employment given the salaried arrangements in place. This is hardly surprising in light of feedback from Supervisors that the salaried arrangements (including overtime and relativities) were of concern. I also note that Mr Williamson in his evidence expressed particular concern with the salaried arrangements. At question 6 of the FAQ's it is stated, quite correctly, that there is no need for an enterprise agreement to improve existing salaried benefits. That would be the case if an agreement simply operated as a floor of minimum conditions above which salaried arrangements continued, this being a scenario the AMWU raised as a possibility in these proceedings.

• [38] The FAQs also correctly summarises the application of the BOOT (at question 5), that an agreement could result in lower benefits when compared to salaried arrangements (question 8) and that prolonged bargaining can result in disputation and industrial action subject to a protected action ballot (questions 9 & 10). Considering the apparent background and experience of the Supervisor cohort having been previously employed under enterprise agreements, the presentation in the Survey of a choice between remaining on salaried arrangements versus being covered by an enterprise agreement was in my view a reasonable proposition to put to Supervisors. My view on this is reinforced by Mr Williamson's evidence as to his objectives in enterprise bargaining and Mr Short's evidence that a negotiated enterprise agreement would be the source of terms and conditions for Supervisors. Putting to one side the 'unsure' responses to the two questions on which no inference can be drawn, the results of the survey reveal a level of support for bargaining (17 out of 56 responses) that falls well short of a majority of Supervisors.

• [39] Accepting for present purposes however that the AMWU's criticism of the BAE FAQs and survey questions may be valid, the AMWU had the opportunity to remedy any perceived information deficiencies when it conducted its own survey. In that respect, the AMWU Survey might be regarded as the 'high water mark' in terms of information available to Supervisors. It is telling then that despite the information available to approximately 50 Supervisors that were surveyed with one simple question, only 28 Supervisors responded, which was less than half the response the BAE Supervisor Survey attracted only two weeks prior. The AMWU suggestion of survey fatigue is simply speculative. The survey result speaks for itself with only 23 employees supporting enterprise bargaining. Significantly, between three and five employees who had previously signed the Petition no longer support bargaining.

• [40] Taking into account all of the information before me including the Petition and the two more recent surveys, it is plainly apparent that support for bargaining has waned significantly since the Petition was conducted between February and June 2025. I am consequently not satisfied at the date of this decision that a majority of the 79 employees that formed the cohort on 23 June 2025 want to bargain (s 237(2)(a)). In reaching this conclusion I have taken into account the most recent information available to me as I am required according to Kantfield.

• [41] Having reached the above conclusion, it is unnecessary for me to deal with the balance of matters set out in s 237.

• [42] I am not satisfied that a majority of the relevant employees who would be covered by the proposed agreement wish to bargain for an enterprise agreement, as of 23 December 2025. As such, the application for a majority support determination must be dismissed.

[1] Exhibit A6, Statutory Declaration of John Lambropoulos, dated 23 June 2025, at [10]

[4] Exhibit A2, Witness Statement of John Short, dated 13 August 2025,at [13], Exhibit A3, Witness Statement of John Lambropoulos, dated 13 August 2025, at [4]

[11] Exhibit A7, Statutory Declaration of Daniel Ram, dated 23 June 2025, at [6]

[12] Exhibit A1, Witness Statement of Daniel Ramm, dated 13 August 2025, at [11]

[13] Exhibit A7, at [8]-[10], Exhibit A1, at [13]

[17] Exhibit A4, Witness Statement of Paul Williamson, dated 13 August 2025, at [25]-[28]

[24] Exhibit A2, Attachment 1, Letter from Mark Plunkett to Carly Fowler, dated 16 April 2025, titled "Re: Enterprise Agreement Negotiations

[25] Exhibit A2, Attachment 2, BAE Correspondence, dated 9 May 2025, titled 'Request for Bargaining - Osborne Shipyard Supervisors'

[26] Exhibit R1, Witness Statement of Peter Benfield, dated 15 September 2025, at [11]-[12]

[30] Exhibit R2, Witness Statement of Eden-Jade Panozzo, dated 15 September 2025, at [27]-[28]

[32] Exhibit R2, Attachment 3, Email from ASC GEN Production Enquiries, dated 8 September 2025, titled 'Supervisors SMART Survey Link and FAQ'

[33] Exhibit R2, Attachment 4, Supervisor EA and Bargaining FAQ

[34] Exhibit R2, Attachment 2, Survey Context/Introduction and Questions

[35] Exhibit R2, Attachment 5, Survey for Osborne Supervisors

[36] Exhibit A5, Second Witness Statement of John Lambropoulos, dated 1 October 2025, at [4]

[38] Exhibit A5, Attachment JS-02, AMWU Survey Script

[40] [2016] FWCFB 8372, at [35]

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