s.236 - Majority support determination

Construction, Forestry and Maritime Employees Union

Application for a majority support determination - application granted - determination made

• [1] The Construction, Forestry and Maritime Employees Union (CFMEU) is seeking to bargain with BW Joinery Pty Ltd for an enterprise agreement that will cover the respondent's current employees engaged at 35-37 Seaside Parade, North Shore 3214 in Victoria who would otherwise be covered by the Joinery and Building Trades Award 2020, Timber Industry Award 2020 and/or the Building and Construction General On-Site Award 2020 (collectively, the relevant Awards).

• [2] On 19 March 2025, the CFMEU applied under s 236 of the Fair Work Act 2009 (Cth) (Act) for a majority support determination. The respondent has not yet agreed to bargain or initiated bargaining for the proposed agreement.

• [3] For the reasons that follow, I have decided to grant the application for a majority support determination.

• [4] On 20 March 2025, directions were issued for the confidential provision of:

(a) the Majority Support Petition relied upon by the CFMEU; and

(b) a list of current employees engaged by the respondent at the respondent's relevant North Shore, Victoria location who would otherwise be covered by the relevant Awards.

• [5] On 21 March 2025, following consideration of the material produced, correspondence was sent to the parties by the Commission which provided, inter alia, as follows:

Of the 14 named persons who appear on the employer's list:

• [The Director] is to be removed. As the Director of the company, [the Director's] role is not a position that would otherwise be covered by the Joinery and Building Trades Award 2020, Timber Industry Award 2020 and/or the Building and Construction General On-Site Award 2020.
• This leaves 13 named persons on the employer's list that appear to be capable of being covered by the proposed enterprise agreement.

In accordance with the Directions of the Commission in the below email, the CFMEU has provided its Majority Support Petition confidentially to Chambers.

The Petition demonstrates to the Commission that eight of the relevant 13 employees have signed the Petition on 14 March 2025 stating that:

"We, the undersigned employees of BW Joinery Pty Ltd, 35-37 Seaside Parade, North Shore 3214 in the State of Victoria, hereby wish to commence bargaining with our employer for a Single Enterprise Agreement:

If the employer refuses to bargain, we respectfully request that the Fair Work Commission make a Majority Support Determination requiring the employer to bargain with us."

The Petition provides that the signatories to the Petition have signed the Petition "of our own free will without anyone pressuring us in any way to sign this petition."

As eight of the relevant 13 employees have signed the Petition, a majority of the employees who are employed by BW Joinery Pty Ltd at 35-37 Seaside Parade North Shore in Victoria and who would otherwise be covered by the Joinery and Building Trades Award 2020, Timber Industry Award 2020 and/or the Building and Construction General On-Site Award 2020 wish to bargain with BW Joinery Pty Ltd for an enterprise agreement.

• [6] Further directions were issued in which the parties were invited to address the balance of the matters in s 237 of the Act.

• [7] Following receipt of the CFMEU's submissions but prior to the filing of the respondent's submissions, the Commission received an email from an employee who signed the Majority Support Petition (Employee X). The email from Employee X advised the Commission that he sought the removal of his name from the Petition.

• [8] A redacted copy of the email from Employee X was served upon the parties. Varied directions were issued in which the parties were invited to make submissions addressing how the Commission should deal with the correspondence.

• [9] In accordance with the varied directions, the respondent filed and served submissions in which it contended, in summary, as follows:[1]

(a) The employee headcount is 12 employees, and a majority of employees equates to at least 7 employees being in favour of the proposed agreement. With Employee X's "swap of votes," only 6 seek to bargain which is not a majority.

(b) A number of employees communicated that they felt pressured into joining the CFMEU, including by some of their colleagues, and did not understand what they were being asked to sign.

(c) Multiple employees sought Chambers' contact details to "rectify" their vote.

(d) The respondent is a small business and participating in a highly confusing and specialised legal process will detract from its ability to manage day-to-day business operations.

(e) Bargaining with the CFMEU is not necessary for employees to achieve fair employment terms and conditions as they are currently in receipt of conditions that exceed the Joinery and Building Trades Award 2020, including in relation to daily fares and travel allowances, distant travel, meal allowances, superannuation, rostered days off and minimum rates of pay.

(f) The respondent does not seek to work in the unionised market, and it would not be viable for the business in the long term.

• [10] The CFMEU filed responsive submissions in which it submitted, in summary, as follows:[2]

(a) The respondent's submission that the employee headcount is 12 is not supported by the evidence and ought to be rejected. It is contrary to the number of employees confirmed by the Commission in its 21 March 2025 correspondence.

(b) The contention that Employee X should be removed from the Majority Support Petition should be rejected. The time to be used in determining whether a majority exists for the purposes of s 237(2)(a)(i) is the time the respondent produced its list of employees to the Commission against which the Majority Support Petition was assessed.

(c) In any event, even if Employee X were removed from the Majority Support Petition, it would remain that a majority (being 7 of 13 employees) wish to bargain; not 6 employees as contended by the respondent.

• (d) The respondent has not otherwise challenged the CFMEU's earlier submissions[3] in which it contended that the group of employees is fairly chosen and that it is reasonable in all the circumstances to make the order for a majority support determination.

• [11] The parties were invited to advise Chambers if they sought that an oral hearing be convened in relation to the application. In the absence of a request, the parties were informed that the application would be determined on the papers. No request for an oral hearing was made. In these circumstances, I consider that the application can be determined having regard to the written material before the Commission.

• [12] Section 237 of the Act provides that the Commission must make a majority support determination in relation to a proposed single-enterprise agreement if an application has been made under s 236, and the Commission is satisfied of the matters in s 237(2). Section 237(2) provides:

(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;

(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.

• [13] With respect to the consideration in s 237(2)(a) of the Act, s 237(3) provides that the Commission may "work out" whether a majority of employees want to bargain by using any method it considers appropriate.

• [14] Further, if the proposed agreement will not cover all of the employees of the employer or employers covered by the agreement, the Commission must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct under s 237(3A) of the Act.

• [15] I am satisfied for the purposes of s 237(1)(a) that a valid application for a majority support determination has been made under s 236. I turn now to the considerations in s 237(2) of the Act.

• [16] Consistent with the correspondence from the Commission to the parties on 21 March 2025:

(a) there are 13 employees on the respondent's list of relevant employees capable of being covered by the proposed enterprise agreement; and

(b) of these 13 employees, 8 signed the Majority Support Petition.

• [17] I am satisfied that as at 21 March 2025 when the Majority Support Petition was compared to the list of current employees produced by the respondent, a majority of employees wanted to bargain with the respondent for an enterprise agreement - being 8 of 13 employees.

• [18] Even if Employee X were to be omitted from the Majority Support Petition, a valid majority - being 7 of 13 employees - still want to bargain with the respondent for an enterprise agreement.

(a) that the workforce is comprised of only 12 employees is rejected; it is not supported by the list of employees it produced to the Commission on 20 March 2025. There remains 13 employees even if Employee X seeks to be excluded from the Majority Support Petition; and

(b) that there are only 6 employees who seek to bargain is also rejected. While the respondent submits that multiple employees sought the contact details for Chambers, the Commission has not received correspondence from any other employee that signed the Majority Support Petition seeking to withdraw their name from the Petition (other than Employee X).

• [20] I am therefore satisfied for the purposes of s 237(2)(a) that a majority of the employees employed by the respondent and who will be covered by the proposed agreement want to bargain with the respondent for a single-enterprise agreement.

Has the respondent agreed to bargain or initiated bargaining?

• [21] I am satisfied for the purposes of s 237(2)(b), having regard to the position expressed by the respondent to the Commission, that it has not yet agreed to bargain or initiated bargaining.

• [22] The proposed agreement will cover all of the employees of the respondent, excluding the Director.[4] Accordingly, I am satisfied that the group of employees who will be covered by the agreement was fairly chosen for the purposes of s 237(2)(c).

• [23] Having regard to the submissions and to the extent that it may be contended that the proposed agreement will not cover all of the employees of the respondent (including by reason of omitting the Director),[5] I accept on the material before the Commission - should it be necessary to do so - that the 13 employees on the respondent's list of current employees form a discrete group of employees. I am satisfied that the group of employees is operationally distinct and that the group was fairly chosen for the purposes of both s 237(2)(c) and s 237(3A).

Is it reasonable in all the circumstances to make the determination?

• [24] While the respondent has made submissions of a general nature, there is no material before the Commission which gives rise to concerns as to the reasonableness of making the determination. For the avoidance of doubt, the fact that Employee X made a request to remove his name from the Majority Support Petition does not, of itself, satisfy me that it is not reasonable in all the circumstances to make the determination.

• [25] I am satisfied that it is reasonable in all the circumstances to make the determination for the purposes of s 237(2)(d).

• [26] Being satisfied that the matters in s 237 of the Act have been met, the application for a majority support determination must be granted.

• [27] The determination is made and is issued separately in PR785925. In accordance with s 237(4) of the Act, the determination will come into operation today.

[1] Respondent's submissions dated 1 April 2025

[2] CFMEU reply submissions dated 3 April 2025

[3] CFMEU submissions dated 27 March 2025

[4] CFMEU submissions dated 27 March 2025 at [16](c)

[5] Form 30 Application for a majority support determination at Q1.2; CFMEU submissions dated 27 March 2025 at [15]

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