s.236 - Majority support determination

Application for a majority support determination - employer does not agree to bargain - whether a majority of employees want to bargain - majority of employees want to bargain - application for majority support determination granted

[1] The Independent Education Union of Australia (IEU) has made an application under s. 236 of the Fair Work Act 2009 (the Act) to the Commission seeking a majority support determination (MSD) concerning a group of employees employed by Garden College.

[2] The employees sought to be covered by the MSD are Teachers at Garden College's two campuses who are currently covered by the Teachers Award [MA000077].

[3] Garden College has not yet agreed to bargain with the IEU but has recognised the Union's capacity to make this application.

• [4] During preliminary proceedings on 26 March 2026, Garden College requested that the Commission initially deal with whether a majority of the relevant employees want to bargain under s. 237(2)(a) of the Act.[1] In that context, I directed the parties to provide material, some on a confidential basis, to inform the Commission whether a majority has been reached.

• [5] At the Case Management Conference, Garden College raised a question about the scope of the employees to be covered by the proposed enterprise agreement. Specifically, Garden College wanted time to consider whether employees with Special Authority to Teach were to be included in the Commission's determination of whether a majority of the relevant employees want to bargain.[2]

[6] In later correspondence to the Commission, both parties agreed that Special Authority to Teach teaching employees were to be included in the scope.

• [7] On 10 April 2026, the Commission confirmed with the parties that the IEU's petition relied upon to demonstrate support for the bargaining, recorded support from a majority of the relevant employees (17 out of 31). Garden College subsequently confirmed that it does not object to the making of the proposed MSD.[3]

[8] Sections 236 and 237 of the Act provide as follows:

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

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

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

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] It is clear from the material before Commission and the common position of the parties that all of the requirements for the granting of the application are not in contention and have been met. The IEU is a bargaining representative and has made a valid application; the agreement being sought is a single enterprise agreement; Garden College has not yet agreed to bargain; the group of employees has been fairly chosen; a majority of employees wish to bargain and it would be reasonable for a determination to be made.

[10] In light of those findings and the results confirmed as outlined above, I am satisfied that all of the requirements of s. 237(2) of the Act have been met. Accordingly, I have granted the application.

• [11] A Majority Support Determination[4] is issued in conjunction with this decision.

[1] Recording of Case Management Conference at 2:37-3:19.

[3] Email correspondence from E. Sexton dated 13 April 2026.

[4] PR798734.

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