Fair Work Act 2009

s.236 - Majority support determination

Retail and Fast Food Workers Union Incorporated

[1] This decision concerns an application by the Retail and Fast Food Workers Union (RAFFWU) under s.236 of the Fair Work Act 2009 (Act) for a majority support determination.

[2] The proposed enterprise agreement that RAFFWU contends for would:

a) cover all store-based employees of Coles Supermarkets Australia Pty Ltd (Coles) (presently covered by the Coles Supermarkets Agreement 2017 (2017 Agreement) and all salaried employees) (Relevant Employees); and

b) not cover the Store Manager and employees covered by the Coles Supermarkets Meat Enterprise Agreement 2018,

[3] There are around 103,600 employees that would be covered by RAFFWU's Proposed Agreement.[1] RAFFWU has produced petitions, taken over the period July to November 2020, which it says demonstrate that over 2,100 employees want to bargain. RAFFWU contends there are 291 written instruments appointing it as bargaining representative and claims that more than 1,000 of the Relevant Employees are its members.[2]

[4] Coles has not agreed to bargain and opposes the application.

[5] In essence, the question before the Commission is whether to order a ballot of the employees covered by RAFFWU's Proposed Agreement so that RAFFWU may establish whether or not a valid majority wants to bargain with Coles.

[6] Section 237 of the Act provides that the Commission must make a majority support determination in relation to a proposed single enterprise agreement if an application has been made under s.236, and the Commission is satisfied of the matters in s.237(2):

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.

[7] In relation to s.237(2)(a), the Commission may work out whether a majority of employees wants to bargain using any method it considers appropriate (s.237(3)). The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) contemplates that such methods might include a secret ballot, survey, written statements or a petition.[3]

[8] In respect of s.237(2)(c), if the proposed agreement will not cover all of the employees of the employer or employers covered by the agreement, the Commission must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is 'geographically, operationally or organisationally distinct' (s.237(3A)).

[9] The application is made by RAFFWU in its capacity as a bargaining representative within the meaning of s.176(1)(c) and Coles did not challenge its standing in this respect.

[10] In relation to s.237(2)(a), the Commission must consider whether a majority of the Relevant Employees employed by Coles at a particular time, and who will be covered by the proposed agreement, want to bargain.

[11] As to the method that should be used to establish whether a majority of employees wants to bargain, RAFFWU submitted that the Commission should order an electronic ballot of the Relevant Employees to be commissioned on a future date at RAFFWU's cost. It said this is a method the Commission has previously accepted as suitable and is an appropriate method to: avoid logistical challenges related to the COVID-19 pandemic; and to enable the process to be undertaken quickly and with certainty as to the identity of participating employees. Further, that the Commission should be persuaded to inform itself by such method having regard to the results of 19 written petitions taken by employees and an online petition by RAFFWU, together conducted over the period July to November 2020, which it said is indicative that a majority want to bargain. RAFFWU summarises the petition results as: more than 99% of those petitioned (over 2,100 Relevant Employees) want to bargain for RAFFWU's Proposed Agreement and less than 1% (fewer than 20 relevant employees) do not. It says the petition results underscore a "reasonable hypothesis" that majority support for bargaining exists. It pointed to the objects of the Act, the objects of Part 2-4 and International Labour Organization Convention 98 in support of its request that the Commission order an electronic ballot in order that RAFFWU may establish the jurisdictional requirement at s.237(2)(a).

[12] Coles did not challenge the voracity of RAFFWU's petitions, but urged the Commission to dismiss the application for reasons outlined in its submissions which are not repeated here.

[13] It is well established that the Commission has a broad discretion to work out whether a majority of employees want to bargain using any method the Commission considers appropriate. Each case turns on its own particular facts. Although an applicant for a majority support determination is not required to provide evidence that there is a majority support for the bargaining process to commence, that is the orthodox approach in persuading the Commission to reach the necessary satisfaction, as an analysis of the authorities reflects. In any event, the legislation does not require the Commission to go about this task. As a Full Bench considered:

There is force in the proposition that an application under s 236 is for a determination that majority support exists, not a speculative investigation into whether it exists.[4]

[14] The petitions obtained by RAFFWU do not establish majority support for bargaining for RAFFWU's Proposed Agreement. Even if the petitions were accepted as sufficiently robust (about which there is some doubt), the petitions demonstrate nothing more than that a small sample size of a significantly larger group of employees that would be covered by RAFFWU's Proposed Agreement have indicated that they want to bargain. With an accepted employee turnover of around 15% per annum[5] the composition of Relevant Employees and those who returned the petitions will have changed: since the application was made; over the 5 month period in which the petitions were gathered; and since those times. But even making some allowance for this, on RAFFWU's best case the petitions fall well short.

[15] Further, this is not a case where RAFFWU can persuasively argue that its view is representative on account of the scaled of its membership, being an even smaller proportion of the Relevant Employees than those petitioned as in support.[6] It is not a barrier to succeeding in the application that RAFFWU does not represent all of the Relevant Employees and/or that the Relevant Employees may be represented by other bargaining representatives. It is an objective fact that the 100,000-plus employees covered by RAFFWU's Proposed Agreement include employees covered by the 2017 Agreement who were represented in that negotiation by 4 employee organisations that are entitled to represent their industrial interests.[7] There is nothing before the Commission to indicate how many of the Relevant Employees those organisations represent and whether those organisations want to bargain for RAFFWU's Proposed Agreement or otherwise. Such evidence might be compelling but, in its absence, I consider this a neutral factor with regard to the consideration of whether to order an electronic ballot.

[16] The simple fact is that RAFFWU has not established even a prima facie case that there is a majority of Relevant Employees that want to bargain for RAFFWU's Proposed Agreement as to justify making an order that a ballot be conducted.

[17] For completeness, RAFFWU's submissions about the impact of the global pandemic (COVID-19) were understood to go to the appropriate method of a ballot if the Commission were so persuaded. Nonetheless, given the time taken to prepare the petitions and the combined in-person and online methods utilised, I see no basis to alter my conclusion on this account.

[18] I acknowledge the plight of RAFFWU in that Coles is a large employer, with a large number of locations at which the Relevant Employees are based, and that its members have gone to some effort to gather petitions for the purposes of this application in circumstances where Coles refuses to bargain with RAFFWU. Indeed the purpose of s.236 is to create a mechanism whereby an unwilling employer might be brought to the bargaining table and subjected to a requirement to bargain in good faith.[8] However those obligations only arise should the Commission be satisfied that a majority of employees covered by the proposed agreement wish to bargain and the other criteria in s.237 are met. In my view and without more, the particular circumstances of this case do not justify the Commission's intervention by ordering a ballot as to establish whether or not RAFFWU can meet the requirement at s.237(2)(a).

[19] For the above reasons, as I am not satisfied that the Commission should order a ballot to test whether or not a majority of employees who will be covered by the proposed agreement want to bargain, and am not satisfied that a majority of the employees who will be covered by the proposed agreement want to bargain, the requirement at s.237(2)(a) is not made out. It is therefore unnecessary to consider the other criteria at s.237 and the application is dismissed.

[1] That precise figure is an assessment made by Coles, as at the time this application was made see Coles Outline of Response to the Application at paragraph 2.7.

[2] As of 8 February 2021, see RAFFWU's Submissions in Reply filed 3 March 2021 at paragraphs 2 and 5.

[4] INPEX Australia Pty Ltd v The Australian Workers' Union [2020] FWCFB 5321 at [11].

[5] RAFFWU's Submissions filed 3 February 2021 at paragraph 30h.

[6] In contrast to the scenario posited in ResMed Limited v Australian Manufacturing Workers' Union [2015] FCA 360 at [58] (ResMed) (upheld on appeal in ResMed Limited v Australian Manufacturing Workers' Union [2015] FCAFC 195 at [10]).

[7] Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty. Limited [2018] FWCA 2283 at [82].

[8] ResMed at 15 citing JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at 28.

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