s 236 - Majority support determination

Application for a majority support determination - Aircrew Logistics Pty Ltd, Perth, WA and Darwin, NT - application dismissed

• [1] This decision arises from an application made by the Flight Attendants' Association of Australia (FAAA) on 25 August 2025 for a majority support determination under s 236 of the Fair Work Act 2009 (Cth) (Act) (MSD application).

• [2] The MSD application is in respect of a proposed enterprise agreement that will cover all 'Airnorth' employees who are employed as cabin crew providing services to flying passengers whilst onboard aircraft operated by Airnorth (Employee Group / cabin crew). Coverage is said to extend to circumstances where the services provided by the cabin crew are also provided on behalf of other airlines, for example Network Aviation a subsidiary of Qantas Airlines Limited. It is understood that cabin crew are located at bases in Perth, Western Australia, and Darwin, Northern Territory.

• [3] In its original form, the MSD Application named another entity, Capiteq Pty Limited (Capiteq) as the respondent, on the basis that Capiteq was purportedly the employer of the employees in the Employee Group. Capiteq initially did not consent to the Applicant's request to correct the misidentification of the employing entity of the Employee Group but later changed its position. I therefore permitted a change under s 586 of the Act to the name of the respondent from Capiteq to Aircrew Logistics Pty Ltd (ABN 86 009 607 103) (Aircrew Logistics) (the Respondent).

• [4] To explain further, Capiteq is a wholly-owned subsidiary of Bristow Helicopters Australia Pty Ltd, which itself is part of the 'Bristow Group' based out of the United States of America. Capiteq, trading under the name 'Airnorth', operates as a regional airline, with headquarters in Darwin and bases in Darwin and Perth. The airline provides scheduled and chartered services in the Northern Territory, Queensland, Western Australia and Timor-Leste. Aircrew Logistics is a subsidiary of Capiteq, employing the cabin crew, pilots, administrative and support staff utilised by Airnorth.

• [5] The Respondent opposed the MSD application on the basis that the Commission cannot be satisfied that: (a) there is majority support for bargaining for the purposes of s 237(2)(a) of the Act; and (b) it is reasonable in all the circumstances to make the majority support determination (MSD) as required by s 237(2)(d) of the Act.

• [6] In respect to s 237(1)(a), there was no dispute that the application had been properly made pursuant to s 236 of the Act, and that the Respondent had not agreed to bargain (see s 237(2)(b)). Further, it was uncontentious that the employees are 'national system employees' (see s 13 of the Act) and that the FAAA is a bargaining representative of one or more of the employees in the Employee Group. The Respondent does not grapple with the Employee Group being fairly chosen that is, the parties appear content that the Commission can be satisfied that the group of employees who will be covered by the agreement was fairly chosen, taking into account whether the group is geographically, operationally or organisationally distinct (see s 237(2)(c)). Furthermore, the parties were content to have the matter determined on the papers and I considered that the appropriate course to take.

• [7] However, for reasons that will be explained shortly, I have not found that a majority of the employees of the Employee Group want to bargain (see ss 237(1)(b) and 237(2)(a) of the Act) and it therefore follows that I do not consider it reasonable in all the circumstances to make the determination sought by the FAAA. It follows that an order[1] issues concurrently to these reasons dismissing the MSD application.

• [9] On receipt of the allocation, my Chambers issued a direction on 26 August 2025 that parties were to attend a conference. In response to the MSD application, the respondent, then named as 'Capiteq Limited Trading AS Airnorth', declined to attend the conference on the basis that it was not the employer of the cabin crew (the Employee Group). That response email dated 3 September 2025, was sent by Jo Francois (Francois), Company Secretary, with reference made to Airnorth in Francois' signature panel.

• [10] On 3 September 2025, Chambers issued correspondence to the parties seeking confirmation as to the entity the parties' considered employed the Employee Group. On that same date, Francois responded by email clarifying that the employing entity of the Employee Group is Aircrew Logistics.

• [11] In response to Francios' email dated 3 September 2025, the Applicant acknowledged in an email of that same date, that the application (Form F30) had included the incorrect legal name of the business. The Applicant submitted that in gathering its documents on 3 September 2025, it identified that it had made a mistake regarding the legal name of the business. Those documents that were attached to the Applicant's email dated 3 September 2025 included a payslip which stated in the title line 'Aircrew Logistics Pty Ltd' and an extract from ASIC's database for the business 'AIRNORTH REGIONAL' the holder of which was 'CAPITEQ PTY LIMITED'. The organisational representative for Airnorth Regional was listed as Francois.

• [12] The Applicant therefore sought leave of the Commission to amend the legal name of the business on the MSD application under s 586 of the Act. It submitted that when the MSD application was drafted the legal name of the business Capiteq was found by searching ASIC's business names register, which showed two entries, Airnorth and Airnorth Regional, each with the holder Capiteq. The Applicant further submitted that all the correspondence it had received from Airnorth to date, only contained the name Airnorth.

• [13] The Applicant submitted that refusal to permit an amendment to the Respondent's legal name from Capiteq to Aircrew Logistics, would be a highly technical outcome and against the Fair Work Commission's statutory duty under ss 577 and 578 of the Act, to act with equity, good conscience and a focus on the merits of the case, while avoiding unnecessary technicalities.

• [14] The Applicant submitted that a core requirement for an application under s 236 of the Act, is that the Commission must be satisfied that a majority of employees want to bargain at a time determined by the Commission. Evidence of majority support, such as petitions or surveys, is time-sensitive, and the Applicant noted its concern that a number of the Employee Group had purportedly resigned from Airnorth since May 2025. Should the amendment not be permitted, the Applicant held the view that the survey process would have to be undertaken again.

• [15] The Applicant further submitted that if the application under s 586 was dismissed and thereafter the MSD application was dismissed, a new application would need to be filed sometime later. According to the Applicant, Airnorth could credibly argue that the original evidence is stale and no longer reflective of the employees' current wishes. This, said the Applicant again, would result in the whole survey process having to be conducted again.

• [16] Initially, Capiteq and Aircrew Logistics opposed the amendment of the Respondent's name and pressed that the appropriate course of action was for the Applicant to withdraw the application and commence its process under s 236 of the Act in relation to Aircrew Logistics. However, by email dated 11 September 2025, Capiteq and Aircrew Logistics consented to an amendment to the name of the Respondent to Aircrew Logistics Pty Ltd.

• [17] Having considered the submissions and evidence of the parties, I formed the view that the appropriate course was to exercise discretion to allow for an amendment to the name of the Respondent from Capiteq Pty Limited (trading as Airnorth) to Aircrew Logistics Pty Ltd in the following terms:

Pursuant to s 586(a) of the Fair Work Act 2009 (Cth), the name of the Respondent in matter B2025/1342 is amended from 'Capiteq Pty Limited Trading AS Airnorth' to 'Aircrew Logistics Pty Ltd'.

• [18] The background to this matter has been extracted from the evidence of Maree Styles (Styles), General Manager of Corporate Services for Capiteq, who confirmed that she was authorised to give her evidence on behalf of the Respondent and Stephen Lau (Lau) and Andrew Boulton (Boulton), both of whom are Industrial Lawyers with the FAAA.

• [19] Lau created a survey via Survey Monkey in mid-April 2025, for the purpose of surveying employees of Airnorth to determine whether they wanted to bargain with Airnorth for a proposed enterprise agreement to cover cabin crew.[2] The survey created by Lau stated:

We seek your support to make an application to the Fair Work Commission for a Majority Support Determination. This will direct Airnorth to begin negotiations for an Enterprise Agreement for the Cabin Crew.

We need to have more than 50% of the all Cabin Crew employees providing their positive support, before we can apply to the Fair Work Commission to seek an Majority Support Determination.

We need to ask if you will support such an application. Please note your details will be provided to the Fair Work Commission who will check if your details against data they received from Air North. (You need to provide your real details.)

However your details will not be provided to Air North, your individual participation is not shared with Air North. They will not know which employees have provided their support but they will know how many employees support an MSD.

Each Cabin Crew can complete this once, if you wish to change your choice or wish to have your support withdrawn please email info@faaa.org.au RE: MSD Air North

You don't have to be a FAAA member to complete this survey, so please pass on to cabin crew colleagues. We need everyone's support.[3]

• [20] On 30 April 2025, Lau published a Survey Monkey survey as a website-link on the 'FAAA AirNorth Members' Facebook group page.[4] Lau stated that only members of the FAAA were permitted to join the Facebook group page.[5] Members were also asked to share the survey website via a QR Code link to invite other employees who were not members of the FAAA to participate in the survey.[6]

• [21] On 22 May 2025, Lau emailed each of the 28 employees who had responded to the survey with a 'yes', requesting that they confirm their support and asking that they confirm their details (22 May Email). In the 22 May Email, Lau informed the employees that they could change their mind at any stage).[7] In response to the 22 May Email, Lau stated he received 21 confirmations and full details from employees, with no employee sending him an email to withdraw support.[8]

Survey Monkey: 30 April 2025 to 24 May 2025 (First Survey)

• [22] Boulton gave evidence that from 30 April 2025 to 24 May 2025, Lau surveyed the employees by Survey Monkey to gauge their support for bargaining for a proposed enterprise agreement with the Respondent to cover cabin crew.[9] Boulton stated that in late May 2025, Lau told him that about 30 respondents to the survey, being employees of the Respondent, responded with 'yes' to the question.[10]

• [23] From 13 June 2025, Boulton took over managing the survey. On 21 August 2025, Lau sent to Boulton a password-protected link to the survey results which Boulton accessed for the purpose of drafting the MSD application.[11] Boulton stated that 31 cabin crew responded to the 30 April to 24 May 2025 survey, with 30 of the cabin crew supporting the making of an MSD, and one not supporting the proposition.[12]

• [24] On 15 August 2025, Boulton sent an email to 30 employees who responded to Lau's survey and had supported the making of an MSD application.[13] Boulton explained that the purpose of the email was to gauge the cabin crews' continuing support for the MSD, as employees come and go from the Respondent.[14] The email was sent to each of the employee's personal email addresses in the blind carbon copy field of the email. The email at annexure AB-2 to Boulton's witness statement set out the following:

You would have previously received emails from Steve Lau, Industrial Lawyer about Cabin Crew being covered by an enterprise agreement.

I have taken over from Steve to complete this task.

Yesterday the FAA was scheduled to meet with AirNorth senior management to raise with them issues Cabin Crew have raised with us. That meeting was cancelled by AirNorth just before it was about to commence. The FAAA sees no utility in trying to have any further meetings with AirNorth and instead [sic] pursue the Majority Support Determination from the Fair Work Commission. If that is successful that will force AirNorth to bargain with the FAAA for an enterprise agreement for you. I will be sending out a Newsletter very soon.

Some months ago you completed the Majority Support Determination survey and showed your support.

Would you advise if you still support a Majority Support Determination.

Yes I still support the Majority Support Determination, OR No I don't support the Majority Support Determination. You are free to change your mind now or in the future, by emailing me.

It would be helpful if you would respond to me by 0900 Monday 18 August 2025. I will be filing the application to the Fair Work Commission early next week.[15]

• [25] It was Boulton's evidence that 19 employees responded to the email maintaining their support for an MSD. One cabin crew member who had not provided a response previously, responded to the email supporting the MSD. Boulton said that he did not receive any emails in response to his email opposing the MSD. Boulton provided copies of the cabin crews' responses.

Survey Monkey: 18 August 2025 to 21 August 2025 (Second Survey)

• [26] Boulton stated that given the 19 responses to the 15 August Email, he wanted to gauge whether there was further support from the Employee Group, in addition to those employees who gave their support in the First Survey.[16] According to Boulton the survey remained active and open for responses.[17]

• [27] On 18 August 2025, Boulton sent a newsletter to FAAA Airnorth members which contained a link to the Survey Monkey survey. Boulton stated that the newsletter encouraged members to forward the link to non-FAAA members who were cabin crew of Airnorth. The Employee Group were said to have responded to the Second Survey.[18] On this occasion, 12 cabin crew responded.[19] Boulton noted that of the 12 cabin crew, six had previously responded to the First Survey and the 15 August Email, three had previously responded to the First Survey, one had previously only responded to 15 August Email, and two cabin crew who had made no previous response gave their support for the first time.[20]

• [28] Boulton gave evidence that he called each of the seven-cabin crew who had responded to the First Survey but did not respond to the 15 August Email or the Second Survey.[21] Boulton explained that he spoke to five cabin crew however, one had resigned, and four others told him they supported the MSD application.[22] Boulton stated that two other employees had not responded.[23]

3.3 Communication between the parties in respect to bargaining

• [29] On 4 July 2025, Boulton sent to the attention of Daniel Bowden, Chief Executive Officer, Airnorth, a letter that detailed concerns about the use of individual flexibility arrangements for cabin crew by reference to a letter that the FAAA had sent to Styles on 16 June 2025. The FAAA's letter of 4 July 2025 set out, amongst other matters, the following:

We do not understand why AirNorth does not pursue an enterprise bargaining agreement for your cabin crew. The FAA is open to bargaining for a new enterprise agreement for our members in AirNorth and invite AirNorth to issue a Notice of Employee Representational Rights to initiate bargaining...

We would again like to meet with you within seven (7) days of the date of this letter. The purpose of the meeting is to discuss the above issues with a view to resolving any misunderstanding. Should you not be prepared to meet we will have no option but to explore and pursue other legal options available to us...

• [30] By letter of 15 July 2025, Styles responded to the FAAA's letter of 4 July 2025. Whilst the letter addressed matters such as a recent internal town hall meeting, the application of Civil Aviation Order 48.1 (CAO 48.1) to cabin crew, individual flexibility arrangements and a request from the FAAA to meet with the Airnorth within seven days, Styles, in addition, addressed the request made by the FAAA that a NERR be issued. Styles responded:

In relation to your request that a Notice of Employee Representational Rights (NERR) be issued, we note that the company has not initiated bargaining for a new enterprise agreement, and there has been no majority support determination or scope order issued. As such, there is currently no requirement for a NERR to be issued.[25]

• [31] By letter of 30 July 2025, Boulton responded to the correspondence from Styles, and in respect of the issue of bargaining stated:

It appears AirNorth has concerns about an enterprise agreement covering its cabin crew. In relation to a Majority Support Determination ('MSD') to force an employer to issue a Notice of Representational Rights ('NERR') the FAAA's experience is it doesn't lead to productive bargaining that best assists our members. Our preference is you issue a NERR and we will bargain with you collaboratively.[26]

• [32] Email correspondence passed between Boulton and Styles on 7 August 2025, and on 12 August 2025, regarding a proposed meeting to address questions that the FAAA had in relation to 'Appendix B Cabin Crew Salary, Allowance & Penalties'.

• [33] On 12 August 2025, Angus MacLeod, Head of Flight Operations, responded to Styles and Boulton that in respect to a FAAA Meeting, '1500 should be fine'.[27]

• [34] It appears that a meeting did not take place between Boulton, Styles and McLeod, because on 15 August 2025, Boulton appears to have sent the 15 August Email with the subject line 'AirNorth Majority Support Determination to obtain an Enterprise Agreement'.

• [35] Styles gave evidence that the cabin crew are employed on either a full-time, part-time or fixed term basis.[28]

• [36] Styles stated that when the FAAA opened its first online survey on 30 April 2025, the Respondent employed 44 cabin crew.[29] As of 27 October 2025, the Respondent employed 53 cabin crew.[30] It is noted that 47 Cabin Crew were employed on the date the application was made (25 August 2025).

• [37] In respect of the period between 30 April 2025 and 27 October 2025, Styles confirmed that the employment of 10 cabin crew with the Respondent had terminated, and 19 new cabin crew had commenced employment with the Respondent.[31]

• [38] It is uncontroversial that the applicant in such applications bears the onus of satisfying the Commission that the MSD should be made.[32]

• [39] The FAAA's evidence is that, in the months preceding the making of its MSD application, it engaged in a combination of processes by which it says it sought to ascertain the support of employees in the Employee Group for the commencement of bargaining with the Respondent for a proposed enterprise agreement. Those processes, in the main, appeared to have consisted of the following five methods:

• a) the First Survey open from 30 April 2025[33] to 24 May 2025[34];
• b) the 22 May Email to some of the employees who had responded 'yes' to the First Survey;[35]
• c) the 15 August Email to some of the employees who had responded 'yes' to the First Survey;[36]
• d) the Second Survery open from 18 to 21 August 2025[37]; and
• e) the August phone calls to some of the employees who had responded 'yes' to the First Survey but had not responded to the 15 August Email or the Second Survey.[38]

• [40] The FAAA's evidence is that the First Survey produced 31 responses, comprising 30 'yes' responses and one 'no' response.[39] In its MSD application, the FAAA identified at paragraph [3] of 2.4.1, that of those who responded, 28 responded 'yes', one responded 'no', and two responded 'yes' but subsequently resigned from the Respondent. The Respondent submits that at the time the First Survey opened, the Respondent employed 44 persons in the Employee Group.[40]

• [41] My initial analysis showed 23 employees responded 'yes' to the First Survey and remained employed with the Respondent at the time the Application was lodged. One employee responded 'no' but had subsequently resigned, three responded 'yes' but had subsequently resigned based on information provided by both parties, a further two were not identified on the Respondent's list, and another employee responded 'yes' and was assumed by the FAAA to have resigned but appeared to have remained employed. The FAAA noted that one 'yes' vote had been omitted from the materials on which I based my initial analysis.[41] If the 'time' was fixed at this period, whether reliance was placed on the FAAA's reported results or my analysis, a majority of cabin crew supported the FAAA making an application for an MSD. After all, Styles gave evidence that at the time of the First Survey, the Respondent employed 44 employees as cabin crew.

• [42] The FAAA then speaks to sending the 28 employees who responded 'yes' to the First Survey the 22 May Email. The 22 May Email set out:

...Before we make an application to the Fair Work Commission, I need to confirm everyone's details.

1. We need to confirm that you continue to support an MSD for a new EBA. You are free to change your mind now or in the future, by emailing me to clarify your position, I can be reached at....

• 2. We need to confirm you [sic] full contact details...[42]

• [43] However, that continued support for an MSD application is not apparent. Following the issuance of the 22 May Email, 21 of the 28 employees responded to confirm their continued support of 'an MSD for a new EBA'.[43] Whilst the Respondent submitted that it was therefore apparent that seven employees did not confirm their continuing support by responding to the 22 May Email, the FAAA rejects the assertion. The FAAA presses that the 22 May Email continued that, '[Y]ou are free to change your mind now or in the future, by emailing me to clarify your position'. It is unclear how this statement in the 22 May Email assists the FAAA. The 22 May Email clearly set out that '[W]e', evidently the FAAA, 'need to confirm that you continue to support an MSD'. It follows, in my view, that if an employee (whether a member or not) did not confirm their continued support, or for that matter clarify their position or provide full contact details, it cannot be accepted that the support for the MSD application was still forthcoming from those members of the cabin crew.

• [44] Near on three months after the closure of the First Survey, the FAAA sent the 15 August Email to 30 employees, the purpose of the 15 August Email, as purported by the FAAA, was to gauge the employees continuing support for the MSD application.[44] Boulton, in his witness statement, acknowledged that employees come and go from the Respondent.[45] The 15 August Email set out that it has been 'some months ago' since the First Survey,[46] and employees were asked, '[W]ould you advise if you still support a Majority Support Determination'.[47] Of the 30 employees who received the 15 August Email, Boulton's evidence was that 19 employees confirmed their continued support, with one new employee indicating their support, for a total of 20 employees.[48]

• [45] Relying upon Boulton's evidence at paragraph [12] of his witness statement, the Respondent submitted that it was apparent that 11 employees who responded 'yes' to the First Survey had not confirmed their continued support. The FAAA submitted, by reference to Annexure AB-11 of Boulton's witness statement, that 18 employees who responded 'yes' to the First Survey also responded 'Yes' to the 15 August Email, whilst one employee who did not respond to the First Survey, responded 'Yes' to the 15 August Email.

• [46] My analysis of the FAAA materials shows that of those 23 employees who voted 'Yes' in the First Survey, 16 employees responded 'Yes' to the 15 August Email, with an additional employee voting 'Yes' to the 15 August Email. Six employees did not respond to the 15 August Email.

• [47] The Second Survey was undertaken by Boulton between 18 to 21 August 2025. The Second Survey was issued after Boulton had sent a newsletter to FAAA Airnorth members which contained a link to the Survey Monkey survey.[49] The newsletter dated 18 August 2025 set out the following:

...The next step is for us to confirm with those cabin crew who have provided their support so far. We sent them an email on Friday 15 July 2025. You are allowed to change you [sic] mind and we give you that opportunity.

We also seek any additional employees (including non-members) who have not expressed their support to do so now. Be assured that your details will remain confidential and will not be passed on to your employer.

If you know anyone (including non-members) who have not completed the survey, feel free to forward them this Newsletter so they can complete the survey. Please complete the survey by 0900 Friday 22 August 2025. The survey is found by Clicking HERE.[50]

• [48] Notwithstanding the circulation of the newsletter prior to the Second Survey and the extension of the invitation to non-members to vote, the survey appears to have produced less support than the FAAA's previous processes. Boulton's evidence was that 12 employees responded.[51] Of those 12, six had previously responded to the First Survey and the 15 August Email, three employees had previously responded to the First Survey (but presumedly not the 15 August Email), one employee had previously responded only to the 15 August Email, and two employees had made no previous response - therefore they gave their support for the first time.[52]

• [49] Boulton followed up with the August Phone Calls - calling seven employees who had responded to the First Survey but had not responded to the 15 August Email or the Second Survey.[53] According to Boulton, he spoke to five employees, of which four verbalised support for the MSD application and one had resigned.[54] Two employees were left voicemails but did not respond.[55]

• [50] In my view, the August Phone Calls are of no probative value. Whilst I am not raising issue with Boulton's credibility, the evidence presented by the FAAA is entirely unsatisfactory in this respect given it relies on hearsay evidence. In the absence of knowing the identity of the cabin crew member subject to the discussion, it is impossible to test the assertions that are made about what was allegedly said. Whilst the FAAA has provided direct evidence in the form of survey results and responses to emails to support its contention that a majority of employees in the Employee Group wish to bargain for an enterprise agreement and therefore support the making of an MSD application, the evidence of Boulton's telephone discussions with purported employees is absent a record which in any way independently indicates the responses of those called and details such as the time or length of the calls. Annexure AB-6 to Boulton's witness statement does not assist in this respect.

• [51] For the Commission to make an MSD, it must be satisfied that the 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.[56] In the decision of Alcoa of Australia Limited v Construction, Forestry, Mining and Energy Union,[57] the Full Bench in its consideration of s 237(2)(a), expressed the following:

That provision, in its dual characterisation of the class of employees the majority of which must want to bargain, clearly contemplates that the group of employees actually employed at the relevant time may not be co-extensive with the group of employees who will be covered by the agreement if made. By contrast, the "fairly chosen" requirement in s.237(2)(c) operates by reference only to "the group of employees who will be covered by the agreement". It is clear therefore that the majority support requirement must be satisfied by reference to that portion of the group of employees who will be covered by the proposed agreement who are presently employed at the time determined by the Commission, whereas the fairly chosen requirement must be satisfied in relation to the entire group who will be covered by the proposed agreement.[58] (underlining for emphasis)

• [52] The Full Bench in Kantfield Pty Ltd v Australian Workers' Union ('Kantfield'),[59] explored what was meant by 'employed at a time', expressing:

[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 section 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.

• [53] In National Union of Workers v Lovisa Pty Ltd ('Lovisa'),[60] Deputy President Colman, having considered Kantfield, reiterated the point the Full Bench was making - namely, 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 support is to be determined.[61]

• [54] Explaining the operation of s 237(2)(a)(i) further, the Deputy President in Lovisa noted that the Commission does not have a discretion to determine the date on which a majority wishes to bargain.[62] Instead, it must assess this question as at the date of the decision, using the most recently available information.[63] By way of example, the Deputy President provided the following illustration:

[T]hus 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.[64]

• [55] I find no reason to depart from the reasoning in Kantfield and Lovisa, and therefore, accept the approach, acknowledging 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. It follows that the date at which the cohort is to be fixed is at the time the MSD application was made.

• [56] Section 237(3) of the Act affords the Commission a 'broad discretion' to use any method that it considers appropriate to work out whether a majority of employees support bargaining.[65] The exercise of that discretion must be informed, in part, by the perceived reliability of the method.

• [57] Whilst appreciative of the endeavours of the FAAA to elicit whether the majority of employees in the Employee Group support bargaining for an enterprise agreement with the Respondent and therefore the making an MSD application to the Commission, those endeavours have occurred over a protracted period in which evidence of such support has been garnered through various means. Essentially, the 'method' which the FAAA is apparently inviting the Commission to endorse, involves at least a First and Second Survey with an approximate three-month intervening period between the two surveys, and in addition, it would appear the 22 May Email, the 15 August Email and the August Phone Calls.

• [58] At this juncture, it is however important to clarify that I do not consider it appropriate to adopt a cumulative approach whereby the results of the First Survey are added to the Second Survey, or where the results of the First Survey are added to responses to the 22 May Email, the 15 August Email and the Second Survey. Issues with respect to the August Phone Calls have been previously canvassed.

• [59] To explain further, the Second Survey was conducted from 18 August 2025 to 21 August 2025, some three months after the First Survey. As was submitted by the Respondent, with this delay comes inevitable issues as to the reliability of the method. The FAAA has not specifically addressed why it issued the 15 August Email or the Second Survey. Evidence was provided by Boulton that the Respondent experienced turnover, and therefore a reasonable inference arises that the FAAA may have considered the latter two processes it engaged in necessary because of the time lapse from the earlier two processes of the First Survey and the 22 May Email. Ultimately, evidence was provided by both Boulton, as noted, and Styles, that the Respondent experienced turnover (Boulton), and that during the period of the First Survey and the Second Survey, there had been terminations of some employees' employment and, in addition, a suite of new starters (Sytles).

• [60] In Transport Workers' Union of Australia v MJ Rowles Pty Ltd,[66] the Commissioner observed that during the period between the signing of the petition and the application having been made, there had been turnover of employees and others had signed common law contracts.[67] The Commissioner thereafter expressed reservations about the petition process at hearing and made suggestion that a secret ballot would provide a clear expression of the employees' wishes.[68] The parties agreed to such course.[69]

• [61] The FAAA's evidence demonstrates that despite its multiple efforts to reaffirm the employees' support for commencing bargaining as recorded in the First Survey, its success in doing so was limited. This is exemplified when consideration is given to the Second Survey. Again, and as I have noted in respect of the 22 May Email, where the FAAA sought from cabin crew that they confirm full contact details or their continued that support and cabin crew did not do so, it cannot be accepted that the support for the MSD application was still forthcoming from those members of the cabin crew that may have previously indicated support in one of the earlier processes.

• [62] Before the Second Survey was distributed, the FAAA issued a newsletter to its members on 18 August 2025 and extended an invitation to non-members to express their support for an MSD application. The content of the newsletter explained to any recipient that the Respondent had not accepted the FAAA's invitation to commence bargaining for an enterprise agreement, that the only option was to apply for an MSD from the Commission - which would force the Respondent to bargain with the FAAA for an enterprise agreement with cabin crew, and for cabin crew and non-members to express their support by completing the survey. A hyperlink to the survey was provided, and the cabin crew were required to respond to the survey by 22 August 2025. Notwithstanding the circulation of the newsletter prior to the Second Survey and the extension of the invitation to non-members to vote, the survey appears to have produced less support than the FAAA's previous processes. As noted, Boulton's evidence was that 12 employees responded. Of those 12, six had previously responded to the First Survey and the 15 August Email, three employees had previously responded to the First Survey (but presumedly not the 15 August Email), one employee had previously responded only to the 15 August Email, and two employees had made no previous response - therefore they gave their support for the first time.

• [63] Despite the FAAA's protracted efforts to confirm that the employees in the Employee Group supported and continue to support the commencement of bargaining, its two surveys, two emails and seven phone calls effectively indicate the opposite - that continued support was declining. According to the Respondent, these processes revealed that although some employees may have responded positively at the time of the First Survey, a notable portion of those employees did not, at various points, confirm their continued support. This proposition is borne out on the evidence.

• [64] This drawn-out method adopted by the FAAA with its steadily decreasing participation is not an appropriate method by which to test the views of employees of the Employee Group.

• [65] Furthermore, were I to rely on the contemporaneous evidence of the Employee Group and its support for bargaining for an enterprise agreement, I would place reliance upon only the Second Survey, which does not evince that a majority of the employees within the Employer Group wish to bargain for an enterprise agreement with the Respondent.

• [66] Having granted the amendment to the application to change the name of the 'respondent' in the manner as set out at [17] these reasons for decision, I observe that the evidence before me that is appropriate to allow me to determine whether a majority of employees want to bargain, is limited to the Second Survey. The results of that Second Survey do not show that a majority of the employees in the Employee Group want to bargain for an enterprise agreement with the Respondent (see s 237(2)(a) of the Act).

• [67] Whilst I may work out whether a majority of employees want to bargain using any method I consider to be appropriate, the particular circumstances of this case do not, in my view, justify the intervention of the Commission to order a ballot for the purposes of establishing that a majority of the relevant employees want to bargain. This is particularly the case given the declining support for an MSD application within the Employee Group as evinced by the comparison between the First Survey and the Second Survey results. Accordingly, I decline to exercise my discretion pursuant to s 237(3) to order a further ballot, should that have been sought by the FAAA.

• [68] On the basis of the material before me and taking into account the evidence, submissions and conclusions reached in relation to ss 237(2)(a), I do not consider it reasonable in all the circumstances to make the determination sought.

[1] PR794235.

[2] Witness Statement of Stephen Lau dated 13 October 2025, [7] (Lau Statement).

[9] Witness Statement of Andrew Boulton dated 13 October 2025, [7] (Boulton Statement).

[24] Witness Statement of Maree Styles dated 27 October 2025, [MS-3] (Styles Statement).

[32] AMWU v Veolia Water Operations Pty Ltd [2015] FWC 2561 [34]-[38], citing Coal & Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (1997) 73 IR 311, 317.

[33] Lau Statement (n 2) [8]; Boulton Statement (n 9) [7].

[56] Fair Work Act 2009 (Cth) s 237(2)(a).

[57] [2015] FWCFB 1832.

[59] [2016] FWCFB 8372.

[60] [2019] FWC 2571.

[65] Inpex Australia Pty Ltd v Australian Workers' Union [2020] FWCFB 5321, [28].

[66] [2012] FWA 955.

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