Fair Work Act 2009

s.236 - Application for a majority support determination

Application for a majority support determination - interim application - application for a secret AEC postal ballot

• [1] This interim decision arises from an application made by the Independent Education Union of Australia (IEUA) under s 236 of the Fair Work Act 2009 (Cth) (Act) for a majority support determination.

• [2] The application was made by the IEUA in respect of a proposed enterprise agreement that would cover all of the employees of the respondent who perform work in the Creche.

• [3] In support of its application for a majority support determination, the IEUA produced a signed petition which it says demonstrates that a majority of employees to be covered by the proposed agreement want to bargain.

• [4] The respondent has not agreed to bargain and opposes the application for a majority support determination.

• [5] Directions were issued for the confidential provision of:

(a) the signed petition containing the names of the employees who sought to commence bargaining for the proposed agreement (Petition); and

(b) the respondent's list of employees employed at the Creche.

• [6] A conference was convened at which the results of the Petition were discussed. The parties were advised that the material before the Commission did not satisfy me that a majority of the employees who will be covered by the proposed agreement want to bargain.

• [7] The IEUA now seeks that the Commission order a secret postal ballot of the relevant employees, to be conducted by the Australia Electoral Commission (AEC) pursuant to s 237(3) of the Act (ballot application).

• [8] The relevant question to be determined is whether the Commission should exercise the discretion in s 237(3) to make such an order.

• [9] By its written submissions, the IEUA also seeks that the Commission exercises the discretion in s 586(a) of the Act to amend the originating application (amendment application). The IEUA submits that if the amendment application is not granted, it seeks that the ballot application be considered on the basis of the application as it currently stands.

• [10] This decision concerns both the amendment application and the ballot application.

• [11] Division 8 of Part 2-4 of the Act is titled "FWC's general role in facilitating bargaining." The subject of Subdivision C is "Majority support determinations and scope orders." Section 236(1) provides that a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the Commission for determination "that a majority of the employees who will be covered by the agreement want to bargain with the employer ..."

• [12] Section 236(2)(a)-(b) sets out matters "[t]he application must specify," being the employer, or employers, that will be covered by the agreement and the employees who will be covered by the agreement.

• [13] Section 237(1)(a) requires that the Commission make a majority support determination if "an application for the determination has been made" and the Commission "is satisfied of the matters set out in subsection (2) in relation to the agreement."

• [14] Section 237(2) provides that:

(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.

• [15] If the Commission is satisfied of the matters in s 237(2), it "must" make a majority support determination.

• [16] By way of its Form F30 Application for a majority support determination, the IEUA sought an agreement that covered all employees of the respondent working in the Creche. The IEUA now seeks leave to amend the application to exclude the Manager of the Creche from the scope of the proposed agreement.

• [17] Specifically, by its amendment application, the IEUA seeks to change its response to the following two questions:

• (a) Which employees will be covered by the proposed enterprise agreement;[1] and
• (b) How can the Commission be satisfied that the group of employees to be covered by the proposed agreement have been fairly chosen?[2]

• [18] In relation to the answer to (a), an amendment is sought in the following terms:

These Employees are operationally and organisationally distinct from the Teachers and general staff employees working in the school as their work is different in nature, conditions, classification structure and delivery of services to that of the Employees in the school.

Employees working in the Creche employed by the Respondent who are covered by the Educational Services (General Staff) Award 2010, excluding the Manager of the Creche"

• [19] In relation to the answer to (b), an amendment is sought in the following terms:

"The Commission can be satisfied that the group of employees to be covered by the proposed agreement are fairly chosen as Employees in the Creche are separate and distinct from support staff and teachers of the Respondent who work in the school as they perform inherently different work from these groups. The relevant employees perform work that is different in nature, conditions, classification structure and delivery of services to that of those working in the school.

The Commission can be satisfied that the group of employees to be covered by the proposed agreement are fairly chosen, as the Creche employees are operationally and organisationally distinct from the Teachers and general staff employees working in the school as their work is different in nature, conditions, classification structure and delivery of services to that of the Employees in the school (who are covered by another enterprise agreement). Further, the Manager's work is distinct from the chosen employees, as it does not involve the same tasks, duties and the delivery of service, as the Manager performs inherently different work from this group."

• [20] In support of the amendment application, the IEUA submits as follows:[3]

(a) the amendment is within the Commission's power to make;

(b) there would be prejudice to the IEUA in re-filing an application for a majority support determination; and

(c) there would be no prejudice to the respondent which would ensue from an exercise of the Commission's discretion in this way.

• [21] In opposing the amendment application, the respondent submits as follows:[4]

(a) there is no factual evidence to support the proposition that the work performed by the Manager of the Creche is distinct from the other Creche employees, and this is the only basis advanced by the IEUA for the amendment;

(b) the amendment application seeks to reduce the number of employees required to demonstrate a majority within the Petition;

(c) the Creche Manager largely enjoys the same terms and conditions of employment as all other Creche staff, is covered by the same underpinning Modern Award, and if this role was not covered by the proposed enterprise agreement, it would be the only role to be excluded within the Creche, which is a small working environment; and

(d) for these reasons, and noting that the Commission it would not be appropriate or reasonable for the Commission to grant the Interim Application at this stage to exclude the Creche Manager from the scope of the proposed agreement.

• [22] The IEUA submits that the Manager's work is substantially different to the balance of the Creche employees and in any event, irrespective of whether the Manager is excluded, the Petition discloses a valid majority.[5]

• [23] The IEUA makes its amendment application pursuant to s 586(a) of the Act, which provides as follows:

586 Correcting and amending applications and documents etc.

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.

• [24] The IEUA relies upon two decisions of single members of the Commission in support of the amendment application. In each decision, s 586(a) of the Act was utilised to amend a s 236 application. In The AWU v Bluescope Steel Ltd t/a Bluescope Lysaght,[6] the amendment related to the coverage of a proposed enterprise agreement. However, other than identifying that the amendment was "minor" and effectively narrowed the scope of the proposed agreement, the decision did not set out its reasons with respect to the amendment, such as by identifying the precise nature of the amendment, whether the application was opposed by the respondent, or the basis for concluding that the discretion should be exercised.[7] In CEPU v Monadelphous Engineering Associates Pty Ltd,[8] the amendment was made by consent.[9] Both of these decisions, as well as other decisions of the Commission exercising the s 586(a) or (b) discretion to amend the proposed scope of the agreement in applications under s 236,[10] turn on their own facts.

• [25] The IEUA seeks that I exercise my discretion to allow an amendment to the identification of the employees to be covered by the proposed agreement. The identification of the group of employees for the purposes of s 236(2)(b) is a statutory condition to the proper making of an application for a majority support determination under s 236. There is nothing in the language of the originating application or the other evidence before the Commission which suggests that the Creche Manager was ever intended to be excluded from the proposed agreement. It follows that the change sought by the IEUA amounts to more than a minor amendment to achieve the evident purpose of the originating application. The effect of the amendment is significant. The IEUA seeks to fundamentally change the majority support determination sought by seeking a determination with respect to a proposed agreement with a different scope.

• [26] Nevertheless, once a valid application has been made under s 236 of the Act, there is nothing in the text of the Act to suggest that s 586(a) cannot be used to amend that application in the manner sought by the IEUA. Further, the parties did not contend that there is any jurisdictional bar to an exercise of the Commission's powers in the circumstances.

• [27] I accept that some prejudice to the IEUA would accrue in circumstances where a refusal to grant the amendment application could only be rectified by way of a fresh s 236 application for a majority support determination. It follows that refusing to grant the amendment application would be at odds with:

• (a) the obligation that the Commission performs its functions in a manner that is quick, informal and avoids unnecessary technicalities;[11] and
• (b) the objects of the Act in achieving productivity and fairness through an emphasis on enterprise‑level collective bargaining.[12]

• [28] These considerations weigh in favour of the exercise of my discretion to allow the amendment.

• [29] Further, the matters raised by the respondent disclose that there may be a dispute as to whether the group would be "fairly chosen" within the meaning of ss 237(2)(c) and (3A) if the Manager of the Creche is excluded from the group which represents the "employees who will be covered by the agreement." This is a relevant matter in the consideration of whether to grant a majority support determination under s 237(2). However, I do not regard the amendment application as the appropriate vehicle to ventilate considerations which are the subject of the substantive application, noting the absence of fulsome evidence and submissions on the point. I am unable to otherwise identify any material prejudice to the respondent that would ensue from the grant of the amendment application, noting the respondent's opposition to a majority support determination being made in any form.

• [30] Having regard to these matters, I exercise my discretion under s 586(a) to amend the application in the manner sought by the IEUA.

• [31] The matters of which the Commission must be satisfied before it is required to make a majority support determination are set out in s 237(2). Relevantly, the Commission must be satisfied that a majority of the employees who are employed by the employer, at a time determined by the Commission, and who will be covered by the agreement, want to bargain.
• [32] The IEUA seeks that the Commission orders "a secret AEC postal ballot of employees that would be covered by the proposed agreement."[13] It contends that this exercise of discretion is reasonable in all the circumstances because:[14]

(a) there is no prejudice to the respondent;

(b) a secret postal ballot of employees would be the first step in ascertaining the employee wishes and supports the objects of the Act, particularly the object in s 3(f) being to promote achieving productivity and fairness through an emphasis on enterprise-level collective bargaining; and

(c) the IEUA cannot identify all the employees said to be employed by the respondent in the Creche.

• [33] The respondent contends that the reasons advanced in support of the ballot application are vague and unsubstantiated. It says that:[15]

(a) the Petition does not establish a majority;

(b) the witness statement filed on behalf of the Principal of the respondent, Mr Stowe-Linder, identifies that the respondent currently employs 17 employees within the Creche and no discrepancies arise;

(c) the contention that the Commission has repeatedly ordered a ballot of employees in such circumstances is not supported by determinations of the Commission;

(d) there is no evidence which discredits the standing of the Petition; and

(e) the concerns said to be held by relevant employees is, of itself, an insufficient basis for the ordering of a ballot.

• [34] By its reply submissions,[16] the IEUA relies upon a witness statement of Mr Earl James. Mr James states that he is aware of only 15 employees employed in the Creche. The IEUA says that this discrepancy may be resolved through the ballot sought. Further, the IEUA submits inter alia that it does not hold concerns in respect of the Petition, rather it is the employees of the Creche that hold concerns that may be ameliorated by a secret postal ballot. It says there are no prerequisites on the exercise of the Commission's discretion under s 237(3) and ballots are ordered where it cannot be satisfied prima facie that a majority of employees want to bargain. The IEUA notes that there has now been a change in employees of the Creche since the application was made such that a ballot will provide the Commission with the most up to date information for the purposes of a determination under s 237.

• [35] Section 237(3) of the Act confers a broad power on the Commission to use "any method" that it "considers appropriate" to "work out" whether a majority of employees want to bargain. However, before exercising the power under s 237(3) there must be material before the Commission which reasonably supports a conclusion that there is, or may be, a majority of employees who want to bargain. As the Full Bench noted in INPEX Australia Pty Ltd v The Australian Workers' Union,[17] an application under s 236 is for a determination that majority support exists, not a speculative investigation into whether it exists. The materials before the Commission should bear out a reasonable foundation for such a hypothesis. That is, the material must provide the Commission with a jurisdictional basis to make orders to ascertain whether majority support for bargaining exists.[18]

• [36] Accordingly, before the power under s 237(3) can be exercised, there must be a basis for doing so. This is because the ordering of a ballot is a substantive act that will impose obligations on the parties. It follows that there must be material that reasonably supports a conclusion that there is, or may be, a majority of employees who want to bargain.

• [37] The parties are not in dispute, and I accept, that I have jurisdiction under s 237(3) to make the orders sought by the IEUA. To this end, the Second Witness Statement of Earl James dated 27 May 2022 relevantly discusses:

(a) that there has been a change in the composition of employees employed within the Creche since the time the application was made; and

(b) that he believes a majority of the employees in the Creche want to commence bargaining in relation to an Agreement which excludes the Creche Manager. In this respect, Mr James gives evidence that "several members" of the Creche consider the Creche Manager is "effectively the principal of the Creche."

• [38] I therefore consider that there is a reasonable hypothesis that a majority of employees want to commence bargaining and as such the jurisdiction to exercise my discretion under s 237(3) is enlivened.

• [39] In relation to whether I should exercise my discretion to order a secret AEC postal ballot, the IEUA submits that the Commission has "repeatedly" ordered a ballot in situations such as the present matter. However, it is important to note that the power under s 237(3) is not unqualified. It does not follow that simply making an application under s 236 gives rise to a sufficient basis for the making of an order under s 237(3).[19] The single member decision relied upon by the IEUA supports this view.[20]

• [40] Unlike in the case of protected action ballots,[21] there are no conditions or rules attached to the conduct of a ballot under s 237(3). The text of the Act provides that I may use "any method" to determine whether a majority exists and that is only qualified by whether that chosen method is "appropriate." In these circumstances, I consider that the discretion afforded by s 237(3) to order a ballot in the terms sought is to be carefully exercised, including by considering the appropriateness of the various methods that I may use to inform myself.

• [41] Having granted the amendment application there is no evidence before me that I consider to be appropriate to allow me to determine whether a majority of employees want to bargain.[22] The Petition, which is titled "Bialik Creche Enterprise Agreement petition," plainly relates to a proposed agreement that applies to all employees of the Creche without exception, including the Creche Manager. The Petition cannot therefore be regarded as representing employee views in respect of a proposed agreement that covers employees working in the Creche, excluding the Creche Manager. Indeed, the relevant employees have not had the benefit of being apprised of the revised agreement scope.

• [42] As discussed above at [40], I may work out whether a majority of employees want to bargain using any method I consider to be appropriate. Given that the Creche is comprised of a relatively small workforce, I am not persuaded that a secret postal ballot conducted by the AEC is the only available method by which to ascertain majo[23]ty support.23 In my view, consistent with recent decisions of th[24]Commission,24 a more appropriate method is for the IEUA to confer directly with the small workforce in relation to its revised scope, obviating the effort, time and expense associated with the conduct of a ballot. A further confidential petition that reflects the amended scope of the proposed agreement ameliorates any employee concerns as effectively as a secret AEC postal ballot. Consistent with the observations made in National Union of Workers v Lovisa[25]ty Limited,25 a petition accords with the objects of Part 2-4 of the Act to provide a "simple, flexible and fair framework that enables collective bargaining in good faith" (s 171(a)) and is consistent with the requirement in s 577 that the Commission performs its functions and exercises its powers in a manner that is quick and informal, avoiding unnecessary technicalities. Surveys or written statements from the relevant employees would have a similar effect.

• [43] Finally, there is doubt as to whether the Commission has power to require the AEC to conduct a ballot in connection with an application for a majority support determination in any event.[26] By Part 3-3 of the Act the AEC is permitted to exercise functions in relation to the conduct of protected action ballots.[27] However, the Act contains no similar provisions in relation to the AEC's involvement in ballots concerning other applications made under the Act. Furthermore, it would be beyond power to determine that the Commission will incur the expense associated with having the AEC conduct the ballot.[28]

• [44] In relation to the amendment application, for the reasons stated, I allow the amendment to the IEUA's Form F30 in the manner set out at [18] and [19] of this decision.

• [45] In relation to the ballot application, for the reasons stated, the particular circumstances of this case do not 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.

• [46] Accordingly, I decline to exercise my discretion pursuant to s 237(3) to order a secret AEC postal ballot.

[3] Applicant's outline of submissions p.3 at [11]

[4] Respondent's outline of submissions p.2 at [10]-[12]

[5]Applicant's outline of submissions in reply at [8c]

[6] [2010] FWA 874

[8] [2018] FWC 3081

[10] See, eg, Australian Education Union v Mambourin Enterprises Ltd (t/as Mambourin) [2020] FWC 3760; Transport Workers' Union of Australia v Suez Recycling and Recovery (Perth) Pty Ltd [2021] FWC 2495; Re Construction, Forestry, Maritime, Mining and Energy Union [2021] FWC 2029; Re Australian Workers' Union [2020] FWC 3340

[11] Fair Work Act 2009 (Cth) s 577(b)

[12] Fair Work Act 2009 (Cth) s 3(f)

[13] Applicant's outline of submissions at [22]

[15] Respondent's outline of submissions at [18]-[23]

[16] Applicant's outline of submissions in reply at [5]-[7], [11]-[14]

[17] INPEX Australia Pty Ltd v The Australian Workers' Union [2020] FWCFB 5321 (INPEX)

[19] Retail and Fast Food Workers Union Incorporated v Coles Supermarkets Australia Pty Ltd t/a Coles Supermarkets [2021] FWCFB 4414 at [15]

[20] Transport Workers' Union of Australia v MWAV Pty Ltd t/a Man With A Van [2018] FWC 6525 at [42], [53]-[54] and [56]

[21] See Fair Work Act 2009 (Cth) Pt 3-3, Div 8, sub-div C and F t

[22] See United Workers' Union v Wilson Security Pty Ltd (t/as Wilson Security) [2020] FWCFB 638 at [25]

[24] United Workers' Union v Wilson Security Pty Ltd (t/as Wilson Security) [2020] FWCFB 638 at [25] and the cases cited therein

[25] [2019] FWC 2885 at [33]

[27] See s 449 of the Act

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