[2025] FWC 2232

Fair Work Act 2009

s.236 - Majority support determination

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Hunternet Group Training Pty Ltd Trading AS Hunternet Career Connections

Majority support determination - exercise of discretion to determine "a time" under s 237(2)(a)(i) of the Fair Work Act 2009.

• [1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia has made an application to the Fair Work Commission pursuant to s 236 of the Fair Work Act 2009 (Cth) for a majority support determination in relation to employees of Hunternet Group Training Pty Limited.

• [2] This decision concerns a discrete dispute between the parties in relation to the Commission's exercise of a discretion to determine "a time" under s 237(2)(a)(i) of the Act.

• [3] The role of a majority support determination is to commence the bargaining process when, among other things, there is majority support among employees to collectively bargain but their employer has not agreed to do so.[1]

• [4] The effect of a majority support determination extends no further than to enliven the bargaining process under the Act, including the obligation on bargaining representatives to meet the good faith bargaining requirements under s 228 of the Act.[2]

• [5] Section 237(2) of the Act addresses the matters about which the Commission must be satisfied before making a majority support determination. Section 237(2)(a) relevantly provides:

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

• [6] Section 237(2)(a) of the Act clearly confers on the Commission a discretion to determine "a time" when the relevant employees are employed by the employer.[3] This provision empowers the Commission to fix by reference to "a time" the cohort of employees from which the question of majority is to be determined.[4] However, the date on which the Commission must assess whether a majority of employees wish to bargain must be the date of the Commission's decision, using the most recently available information.[5] The practicalities were helpfully described in the following way by DP Colman in National Union of Workers v Lovisa Pty Ltd:[6]

"Thus the Commission might exercise its discretion to determine 1 January to be the time at which the cohort of employees is to be fixed, and on 1 February (the date of its decision) determine whether a majority of the persons employed at 1 January wishes to bargain. Evidence about employees' wishes, such as petitions, produced throughout January and up until 1 February could be taken into account in determining whether a majority existed. The question for the Commission would be whether, as at 1 February, a majority of the employees who were employed as at 1 January wished to bargain".

• [7] The facts and circumstances of each case will bear on the exercise of the discretion conferred on the Commission by s 237(2)(a)(i) of the Act. How such a discretion has been exercised in other cases, with different facts, does not provide much assistance.

• [8] The following general principles assist to guide the exercise of a discretion under the Act:

• (a) the discretion must be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent;[7]

• (b) the discretion should be exercised in a manner which is 'fair and just', and takes into account 'equity, good conscience and the merits of the matter';[8] and

• (c) the discretion should be exercised having regard to the objects of the Act and the relevant Part of the Act.[9]

• [9] I have read and considered the written submissions filed by the parties.

• [10] In summary, the CEPU submits that the date on which the application was filed (26 May 2025) should be used to fix the cohort of employees for the purpose of s 237(2)(a)(i) of the Act. In the alternative, the CEPU submits that the date for fixing the cohort should be 24 June 2025, which is when the CEPU stopped actively garnering petitions from employees. The CEPU submits that this is consistent with the approach taken in other matters before the Commission.

• [11] The CEPU also submits that 24 June 2025 is a just and fair option when having regard to the following:

(a) Hunterlink was on notice that the CEPU was at least contemplating an altered scope from at least 4 June 2025, which was the date of the first conference before the Commission; and

(b) Hunterlink was aware, as of the conference before the Commission on 25 June 2025, that:

(i) the CEPU sought to alter the scope of the proposed agreement to include all electrical apprentices in NSW and the ACT; and

(ii) the CEPU had collected petitions again to support its amended application with the amended scope.

• [12] The CEPU submits that it is concerned by the prospect that Hunterlink has hired a substantial number of employees after 25 June 2025 so as to artificially deflate the proportion of employees within the altered scope who wished to bargain. This is due to the following:

(a) Hunterlink would have had a very strong incentive to do so as of 25 June 2025, which was when it became aware that the CEPU sought to alter the scope and had collected new petitions; and

(b) Hunterlink opposes the CEPU's alternate date of 24 June 2025 and argues only for a date of 30 June 2025. On its face, the difference of 6 days is trivial. There would no reason for the employer to argue for such a minor difference unless there was a substantial change in the workforce between 25 June 2025 and 30 June 2025.

• [13] Having regard to these circumstances, the CEPU submits it would just and fair to fix the cohort by no later than the day before Hunterlink became aware of the petitions and the CEPU's intended amendment. This would make the date 24 June 2025. Such a date would ensure no artificial deflation of support by Hunterlink.

• [14] Hunterlink submits that a date should be adopted which is 'fair and just' and which best gives effect to the policy and purpose of the statutory provision. In the context of s 237, the Commission's task is to determine whether or not a majority of the relevant employees wish to bargain. Therefore, Hunterlink submits that the Commission should determine a date which best facilitates a 'fair and just' determination of that question.
• [15] Hunterlink submits that the Commission should determine 30 June 2025 as the date upon which the relevant employees should be identified, being the date upon which the CEPU's amended application was filed. Hunterlink submits that this is an appropriate date; to fix a date earlier than 30 June 2025 runs the risk of creating an outcome (the quantum of the cohort) which is both outdated and inaccurate - thereby skewing the accuracy of the assessment.

• [16] Hunterlink submits that the Commission should not be persuaded by the CEPU's submission that the date for fixing the cohort "should be" 26 May 2025 - being the date the original application was filed - for the following reasons:

(a) That application related to a proposed enterprise agreement with an entirely different scope from the application which is currently before the Commission.

(b) The Commission is now being asked to consider whether an entirely different cohort of employees wish to bargain than would have been the case had the original application proceeded.

(c) The CEPU asserts that petitions were purportedly collected from employees who allegedly wish to bargain for the amended scope agreement between 11 and 24 June 2025; i.e. after the date upon which the CEPU submits the Commission should determine the cohort. Having more up-to-date information will surely assist the Commission in determining whether a majority of employees who would be covered by the proposed agreement do, in fact, wish to bargain.

• [17] The application originally filed by the CEPU in the Commission on 26 May 2025 specified the employees who will be covered by the proposed agreement as all of Hunterlink's Electrical Apprentices placed with Star Electrical Co Pty Ltd working on the John Hunter Hospital Construction Project.

• [18] Following conferences before the Commission and concerns being raised by Hunterlink, on 30 June the CEPU filed an amended application in the Commission. The amended application specified the employees who will be covered by the proposed agreement as all of Hunterlink's Electrical Apprentices in New South Wales and the ACT (although the CEPU understood, at the time of filing its amended application, that there were no such employees in the ACT). On any view of it, this was a significant change to the scope of employees who would be covered by the proposed agreement.

• [19] At the same time as the CEPU filed its amended application (30 June 2025), the CEPU provided the Commission with all petitions received by the CEPU between 11 June 2025 and 24 June 2025.

• [20] The Commission's task under s 237(2)(a) of the Act is to determine whether a majority of employees who will be covered by the proposed agreement want to bargain. In circumstances where the scope of employees who will be covered by the proposed agreement has changed significantly since the application was filed in the Commission, I do not regard the date the original application was filed in the Commission to be an appropriate date to fix the cohort of employees.
• [21] Having regard to all the circumstances, I consider it is appropriate to exercise my discretion under s 237(2)(a)(i) of the Act to determine the date on which the amended application was filed by the CEPU in the Commission, 30 June 2025, to be the "time" for fixing the relevant cohort of employees.

• [22] On Friday, 8 August 2025, I will decide, by reference to the material before the Commission at that time, whether a majority of Hunterlink's Electrical Apprentices in New South Wales and the ACT, who were employed by Hunterlink on 30 June 2025, wish to bargain for an enterprise agreement. This means that either party may, prior to my making of the decision on 8 August 2025, file in the Commission further petitions or other information they seek to rely on in relation whether a majority of Hunterlink's Electrical Apprentices in New South Wales and the ACT, who were employed by Hunterlink on 30 June 2025, wish to bargain for an enterprise agreement. Giving both parties advance notice of the date on which I intend to make my decision will permit the CEPU to obtain more signatures on petitions by any apprentices in the relevant cohort who were employed by Hunterlink on 30 June 2025 but were not employed at the time the earlier petitions were prepared by the CEPU. I am of the view that this will overcome the concerns identified by the CEPU in its submissions.

• [23] I also direct Hunterlink to file in the Commission, by 4pm on 5 August 2025, a list of its Electrical Apprentices in New South Wales and the ACT, who were employed by Hunterlink on 30 June 2025.

[1] LHMU v Coca-Cola Amatil (Aust) Pty Ltd [2009] FWAFB 668 at [28]

[3] Kantfield Pty Ltd v AWU (2016) 266 IR 1

[4] National Union of Workers v Lovisa Pty Ltd [2019] FWC 2571 at [31]

[6] [2019] FWC 2571 at [31]

[7] Baxter Healthcare Pty Ltd v Portelli [2017] FWCFB 3891; Ayub v NSW Trains [2017] FWCFB 4801

[9] Application by Fine Tune Communications & Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

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