Fair Work Act 2009

s.236 - Application for a majority support determination

Construction, Forestry and Maritime Employees Union

Application for a majority support determination - whether petition is cogent and reliable evidence - determination made

• [1] Certis Security Australia Pty Ltd (Certis) is contracted by DP World to provide security guards to work at DP World's Port Botany site. The Construction, Foresty and Maritime Employees Union (CFMEU) has filed an application pursuant to s.236 of the Fair Work Act 2009 (FW Act) for a determination that a majority of Certis' employees that work as a security guard at DP World's Port Botany site want to bargain for an enterprise agreement.

• [2] Section 237 of the FW Act states the Commission must make a majority support determination if:

• An application has been made.
• The Commission is satisfied a majority of employees employed by the employer at a time determined by the Commission, and who will be covered by the agreement, want to bargain.
• The Commission is satisfied the employer has not agreed to bargain or initiated bargaining.
• The Commission is satisfied the group of employees who will be covered by the agreement was fairly chosen.
• The Commission is satisfied it is reasonable in all the circumstances to make the determination.

• [3] The CFMEU's application was listed for Mention/Directions on 22 September 2025. During this proceeding, Certis confirmed it opposed the making of a determination but only on the ground that the Commission cannot be satisfied that a majority of the relevant employees want to bargain.

• [4] After hearing from the parties, I determined during the Mention/Directions proceeding that the point in time for the required assessment of majority support as required by s.237(2)(a) of the FW Act would be 15 August 2025 to 5 September 2025. This period was longer than that sought by the CFMEU. I decided a three-week period was appropriate given Certis had suggested that the employment of casual employees at the Port Botany site tends to fluctuate.

• [5] I directed the parties to file evidence and submissions in support of their positions by 26 September 2025 and listed a hearing via video for 2 October 2025.

• [6] I am satisfied that the CFMEU has made a valid application for a majority support determination. This was not contested by Certis.

• [7] The CFMEU has provided a petition signed by nine employees from DP World's Port Botany site indicating that they want to bargain for an enterprise agreement with Certis.

• [8] Shane Reside (Organiser) provided a witness statement dated 26 September 2025 which explains that he emailed a petition to a security worker to be covered by the agreement on 29 August 2025. Mr Reside provided evidence that the petition was returned to him with the nine signatures on 1 September 2025.

• [9] Certis was provided with an unredacted copy of the petition and has accepted that the employees who signed the petition were employed during the period of 15 August 2025 to 5 September 2025.

• [10] Certis provided a submission to the Commission dated 26 September 2025 which confirmed Certis engaged a total of 14 full-time and casual employees to perform work at DP World's Port Botany site from 15 August 2025 to 5 September 2025.

• [11] Certis submitted that while the petition evidence suggests that a "numerical majority" of the relevant employees for the period of 15 August 2025 to 5 September 2025 want to bargain for an enterprise agreement, the petitions cannot be considered cogent and reliable evidence.

• [12] Deputy President Colman stated the following about the use of petitions to determine majority support for bargaining in Lovisa:[1]

"I deal first with the use of petitions. The union contended that petitions are an appropriate and widely-used method of establishing majority support, and that I should accept its use in this case. The broad discretion afforded to the Commission to use any method it considers appropriate contemplates a variety of possibilities. Clearly a vote is not required, as other provisions in the Act mandate a vote and s 237 does not. Petitions seem to me to be one obvious way to demonstrate employee support for the purposes of s 237. A petition can be collated quickly, simply and informally. It can provide a sound evidentiary basis for the Commission to assess whether there is majority support for bargaining. It is in principle a method of assessment of majority support that accords with the object of Part 2-4 to provide a 'simple, flexible and fair framework that enables collective bargaining in good faith' (s 171(a)), and the requirement in s 577 that the Commission perform its functions and exercise f_p_n_7_ [2019] FWC 2885 8 its powers in a manner that is quick and informal, avoiding unnecessary technicalities (s 577(a) and (b)). Another requirement is that the Commission act in a way that is open and transparent (s 577(c), and I will return to this below."

• [13] I reject Certis' submission that the petitions filed by the CFMEU cannot be considered cogent and reliable evidence. Mr Reside has given evidence about how the signatures on the petitions were obtained and his evidence demonstrates there was nothing remarkable or untoward about the process. Certis has been aware of the employees that had signed the petition since the application was filed on 4 September 2025. Certis has been provided with an opportunity to lead evidence to establish that the employees who signed the petition do not want to bargain for an enterprise agreement. Certis has not provided any evidence which raises doubt that the employees who signed the petition want to bargain for an enterprise agreement.

• [14] I find that nine of Certis' 14 employees for the period of 15 August 2025 to 5 September 2025 who will be covered by the agreement want to bargain for an enterprise agreement. I am satisfied that a majority of the relevant employees want to bargain for an agreement.

• [15] Certis did not argue that it has agreed to bargain or has initiated bargaining.

• [16] There is no evidence that Certis has agreed to bargain or has initiated bargaining. Certis' opposition to the making of a determination is further evidence of its current resistance to bargaining.

• [17] I find Certis has not agreed to bargain with the relevant employees and has not initiated bargaining.

• [18] Certis did not argue that the group of employees selected by the CFMEU has not been fairly chosen.

• [19] I am satisfied that the employees of Certis employed to perform security work at DP World's Port Botany site constitute a group of employees that has been fairly chosen by the CFMEU. The group is geographically distinct from other Certis employees performing security work. The group is also operationally distinct from Certis employees that do not perform security work.

• [20] Certis did not argue that it was not reasonable in all the circumstances for the Commission to make the determination. Certis' only ground of opposition to the application was that the evidence led by the CFMEU is not sufficient to establish that a majority of the relevant employees want to bargain.

• [21] Certis' submissions did refer to recognising the United Workers' Union as the representative body for its national security workforce and raised concerns that the emergence of the CFMEU creates overlap and ambiguity in terms of coverage. I do not consider the potential for overlapping coverage means that it is not reasonable for the determination to be made. Overlapping union coverage is extremely common in Australia.

• [22] I note Certis has not argued that the CFMEU is not eligible to represent the relevant employees and Certis has not argued that the CFMEU does not have any members amongst the relevant employees. That means the CFMEU is eligible to make the application. I consider it would be unreasonable to not make the determination in circumstances where the CFMEU has standing under the FW Act to make the application.

• [23] I have not been taken to, and have not identified, and other circumstances that support a finding that it is not reasonable to make the determination.

• [24] Given my findings above, I am required by s.237 of the FW Act to make a majority support determination in relation to the employees of Certis who perform security work at DP World's Port Botany site.

• [25] The determination will be issued separately. The determination will come into operation on the date on which it is made in accordance with s.237(4) of the FW Act.

[1] National Union of Workers v Lovisa Pty Limited [2019] FWC 2885 at [33].

Printed by authority of the Commonwealth Government Printer