Fair Work Act 2009

s.236 - Majority support determination

Construction, Forestry and Maritime Employees Union

Komform Pty Ltd - Construction workers in Queensland and the Northern Territory

• [1] On 3 July 2025, the Construction, Forestry and Maritime Employees Union (the Applicant) applied to the Fair Work Commission (the Commission) seeking a majority support determination under s.236(1) of the Fair Work Act 2009 (Cth) (the Act) for a group of workers employed by Komform Pty Ltd (the Respondent) in Queensland and the Northern Territory. The Respondent has not commenced bargaining with the employees seeking the Determination.

• [2] Directions were issued by my Chambers for the Applicant to supply an unredacted petition to Chambers in confidence and for the Respondent to provide an employee list.

• [3] The Respondent initially raised a number of objections to the application. The matter was listed for a conciliation conference on 29 July 2025. Subsequently, the Respondent advised that it would not press an objection regarding the Applicant's eligibility to act as a bargaining representative "subject to the CFMEU satisfying the Commission by evidence or material that the CFMEU has a member on the petition that is eligible to be represented by the CFMEU."

• [4] My Chambers requested the Applicant to provide confidential evidence of its members employed by the Respondent. Having reviewed that evidence, I am satisfied that at least one employee who signed the petition is a member of the CFMEU.

• [5] Under s.236(2) of the Act, the Application must specify:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

• [6] The Applicant provided a submission outlining the CFMEU's capacity to represent form workers. I am satisfied that the Applicant is a bargaining representative of the employees who will be covered by the agreement and is entitled under its registered rules to represent the industrial interests of the employees in question.

• [7] The Application lodged on 3 July 2025 complies with the requirements of s.236 of the Act.

• [8] I must consider the criteria provided under s.237 of the Act which provides the following:

"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."

• [9] I adopt the reasoning of Deputy President Colman in National Union of Workers v Lovisa Pty Limited [2019] FWC 2571 that the Commission has discretion to determine the date from which the employee cohort is counted, which does not necessarily have to be the date of the application.[1] I accordingly adopt the date of 10 July 2025, being the date on which the Respondent provided evidence of its current employee list, as the date from which I will assess the number of employees.

• [10] The Respondent provided a confidential list of its employees who perform construction work in Queensland and the Northern Territory. There are 64 employees on that list.

• [11] The CFMEU provided a confidential unredacted petition to Chambers. I note there are varying levels of legibility to the names handwritten on that petition. However, on my assessment of the petition, 31 employees who will be covered by the Agreement have signed the petition. Therefore, 48.44% of employees who will be covered by the Agreement have signed the petition. Some people who signed the petition do not appear on the Respondent's employee list.

• [12] As only 48.44% of employees who will be covered by the Agreement signed the petition, I am not satisfied that a majority of employees who are employed by the employer and who will be covered by the Agreement want to bargain.

• [13] Therefore, I am not able to make a majority support determination. I, however, note for completeness that I would otherwise be satisfied that the employer has not yet agreed to bargain and that the group was fairly chosen.

• [14] The application is dismissed. I Order accordingly.

[1] National Union of Workers v Lovisa Pty Limited [2019] FWC 2571 at [31] - [34]

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