Fair Work Act 2009

s.248 - Application for a single interest employer authorisation

Shop, Distributive and Allied Employees Association

Philip Colasante Pharmacies Pty Ltd & Pharmec Pty Ltd and Others

Proposed single interest employer authorisation - franchisees operating as Chemist Warehouse pharmacies in South Australia - contested application - whether demonstrated by applicant that a majority of relevant employees at each employer want to bargain for the agreement at a time determined by the Commission - application amended to remove some respondents - facial majority at remaining respondents - whether evidence supports the necessary finding - observations made about the required approach - findings made about the circumstances, information and processes adopted in connection with the petitions - satisfied that the majority of employees want to bargain for the agreement - all other requirements have been met - authorisation issued.

• [1] This matter concerns an application by the Shop, Distributive and Allied Employees Association (SDA) under s.248 of the Fair Work Act 2009 (Cth) (FW Act) for a single interest employer authorisation (authorisation). The authorisation is sought in respect of bargaining for a proposed multi-enterprise agreement to cover a defined group of employees employed by six named employers. In particular, the application as amended seeks authorisation for the commencement of bargaining with the following employers who each carry on an enterprise as a franchisee operating Chemist Warehouse pharmacy stores in South Australia (respondent employers):[1]

• Marcello Verrocchi;
• Patricia Colasante & Mario Verrocchi;
• Philip Colasante Pharmacies Pty Ltd & Pharmec Pty Ltd;
• A. Colasante & Mario Verrocchi;
• Patricia Colasante Pharmacies Pty Ltd & J.A Seman & Z.A Seman; and
• S.Gance Patricia Colasante & Joyce & Sam Pharmily Trust.

• [2] The class of employees to be covered by the proposed authorisation is:

"Each employee of the respondent employers who performs work in the State of South Australia and who performs work at a pharmacy within any classification between A.1 and A.8 of the classification definitions provided at Schedule A of the Pharmacy Industry Award 2020, but not including workers employed as a "Pharmacist in charge" or "Pharmacist manager".

• [3] The respondent employers oppose the making of the proposed authorisation on the basis of one of the essential requirements for the making of an order of that kind; namely, "whether a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement" as stated in s.249(1B)(d) of the FW Act - the majority support requirement.

• [4] The respondent employers all employ at least 20 employees and there are no current enterprise agreements covering the employment of the relevant employees.

• [5] Despite the relatively narrow basis upon which the application is opposed, it is necessary that the SDA satisfy the Commission that all of the relevant requirements have been met. As a result, I have conducted a hearing to deal with the application generally, including hearing evidence and submissions primarily about the majority support requirement.

• [6] Leaving aside the majority support issue, I am satisfied that all of the other requirements for the making of the authorisation in relation to each of the respondent employers have been met. I deal briefly with these issues below. In terms of the contested matter, I have also determined that a majority of the relevant employees at each of the respondent employers want to bargain for the agreement. This is dealt with in detail in the decision that follows. As a result of these findings, the authorisation has been issued by the Commission.

• [7] The objects of Part 2-4 - Enterprise agreements of the FW Act are set out in s.171 as follows:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i) making bargaining orders; and

(ii) dealing with disputes where the bargaining representatives request assistance; and

(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay."

• [8] Sections 248 to 250 of the FW Act relevantly provides:

(1) The following may apply to the FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement that will cover two or more employers:

(b) a bargaining representative of an employee who will be covered by the agreement.

(a) the employers that will be covered by the agreement;

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

(c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made.

249 When the FWC must make a single interest employer authorisation

(1) The FWC must make a single interest employer authorisation in relation to a proposed enterprise agreement if:

(a) an application for the authorisation has been made; and

(i) at least some of the employees that will be covered by the agreement are represented by an employee organisation; and

(ii) the employers and the bargaining representatives of the employees of those employers have had the opportunity to express to the FWC their views (if any) on the authorisation; and

(iii) if the application was made by 2 or more employers under paragraph 248(1)(a) - the requirements of subsection (1A) are met; and

(iv) if the application was made by a bargaining representative under paragraph 248(1)(b) - each employer either has consented to the application or is covered by subsection (1B); and

(v) the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and

(vi) if the requirements of subsection (3) are met - the operations and business activities of each of those employers are reasonably comparable with those of the other employers that will be covered by the agreement.

(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and

(b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;

it is presumed that the operations and business activities of the employer are reasonably comparable with those of the other employers that will be covered by the agreement, unless the contrary is proved.

Additional requirements for application by employers

(1A) The requirements of this subsection are met if:

(a) the employers that will be covered by the agreement have agreed to bargain together; and

(b) no person coerced, or threatened to coerce, any of the employers to agree to bargain together.

Additional requirements for application by bargaining representative

(a) the employer employed at least 20 employees at the time that the application for the authorisation was made; and

(b) the employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and

(c) the employer is not named in a single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement; and

(d) a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement; and

(e) subsection (1D) does not apply to the employer.

(1C) For the purposes of paragraph (1B)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(a) the employer and the employees of the employer that will be covered by the agreement are covered by an enterprise agreement that has not passed its nominal expiry date at the time that the FWC will make the authorisation; or

(b) the employer and an employee organisation that is entitled to represent the industrial interests of one or more of the employees of the employer that will be covered by the agreement have agreed in writing to bargain for a proposed single‑enterprise agreement that would cover the employer and those employees or substantially the same group of those employees.

(2) The requirements of this subsection are met if the employers carry on similar business activities under the same franchise and are:

(b) related bodies corporate of the same franchisor; or

(3) The requirements of this subsection are met if:

(a) the employers have clearly identifiable common interests; and

(b) it is not contrary to the public interest to make the authorisation.

(3A) For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:

(c) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises.

(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and

(b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;

it is presumed that the requirements of subsection (3) are met in relation to that employer, unless the contrary is proved.

(3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1B)(a) or (3AB)(b):

(b) subject to paragraph (c), all employees employed by the employer at the time that the application for the authorisation was made are to be counted; and

(c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and

(d) associated entities of the employer are taken to be one entity.

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation at the earlier of the following:

(i) at the same time as the enterprise agreement to which the authorisation relates is made;

(ii) 12 months after the day on which the authorisation is made or, if the period is extended under section 252, at the end of that period.

249A Restriction on making single interest employer authorisations

The FWC must not make a single interest employer authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to general building and construction work.

250 What a single interest employer authorisation must specify

(1) A single interest employer authorisation in relation to a proposed enterprise agreement must specify the following:

(a) the employers that will be covered by the agreement;

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

(c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made;

(d) any other matter prescribed by the procedural rules.

Authorisation may relate to only some of employers or employees

(2) If the FWC is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and common interest employers) in relation to only some of the employers that will be covered by the agreement, the FWC may make a single interest employer authorisation specifying those employers and their employees only.

(3) The FWC may make a single interest employer authorisation that does not specify one or more employers specified in an application for the authorisation, and the employees (the relevant employees) of those employers specified in that application, if the FWC is satisfied that:

(a) the employers are bargaining in good faith for a proposed enterprise agreement that will cover the employers and the relevant employees, or substantially the same group of the relevant employees; and

(b) the employers and the relevant employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employers and the relevant employees, or substantially the same group of the relevant employees; and

(c) on the day that the FWC will make the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).

(4) If the effect of subsection (3) is that no employers would be specified in the authorisation, the FWC may refuse the application for the authorisation."

• [9] The requirements for making an authorisation under s.249 of the FW Act vary, depending upon the nature of the applicant and the circumstances of the employers involved. In this case, the applicant is an employee bargaining representative. This means that the "additional" requirements of s.249(1B) apply and the terms of s.249(1A) and consequential provisions do not.

• [10] Among the requirements of s.249(1), the Commission must be satisfied that:

(iv) if the application was made by a bargaining representative under paragraph 248(1)(b) - each employer either has consented to the application or is covered by subsection (1B); and

(v) the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and

(vi) if the requirements of subsection (3) are met - the operations and business activities of each of those employers are reasonably comparable with those of the other employers that will be covered by the agreement."

• [11] Subsection 249(1)(v) is a requirement that either subsection 249(2) or (3) are met. Subsection (2) provides that the employers carry on similar business activities and are franchisees of the same franchisor, or related bodies corporate of the same franchisor or any combination of the above. This is the basis upon which this application has been brought, and the respondent employers have conceded that this requirement is met in each case.

• [12] Subsection 249(3) is a requirement that the employers have clearly identifiable common interests, and it is not contrary to the public interest to make the authorisation. The joint position of the parties is that where subsection 249(2) is met, it is not necessary that subsection (3) also be satisfied. I accept that this is the intention of the provision. The parties also agree that subsection 249(1)(vi) is only engaged where the requirements of subsection (3) are met. That is, it is not necessary in this case, where subsection (2) is relied upon and met, that the SDA demonstrate and the Commission finds that the operations and business activities of the employers are, in effect, reasonably comparable with one another. This is because this subsequent requirement is dependent upon the finding contemplated in subsection (3), which is not engaged in this application. This approach accords with the language and apparent purpose of the provisions when read as a whole, including the express terms of s.249(1)(v) and (vi) and the fact that the nature of the business activities is already comprehended in the franchise requirements of s.249(2) of the FW Act. Accordingly, I have applied the agreed approach in this matter.

The requirements other than the majority support requirement

• [13] The application was made by the SDA and it is a bargaining representative for employees who will be covered by the proposed agreement. The application specifies the required matters; observing that there is no requirement to include the person nominated by the employers to make applications where there is no such nomination.[2] The Commission is not aware that any such nomination has been made. I am satisfied that the requirements under s.248 of the FW Act and related criteria have been met.

Are at least some of the employees who will be covered by the Agreement represented by an employee organisation?

• [14] I am satisfied that at least some of the employees that will be covered by the agreement are represented by an employee organisation.[3] It is not in contest that some of the relevant employees are a member of, and are represented by, the SDA, which is a (registered) employee organisation.

Have the relevant parties had the opportunity to express their views?

• [15] I am satisfied that the SDA and the respondent employers have had the opportunity to express their views on the proposed authorisation.[4] There are no other (identified or known) bargaining representatives in this matter.

• [16] The relevant parties have now also provided submissions confirming their views.

Have the respondent employers consented to the application or is s.249(1B) met?

• [17] The employers that will be covered by the agreement have not consented to the application.[5] As a result, s.249(1B) must be met. This requirement is not in contest.

• [18] I am satisfied that each respondent employer:

• employed at least 20 employees at the time that the application for the authorisation was made; and

• has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and

• is not named in a single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement.

• [19] I am also satisfied that subsection (1D) (existing enterprise agreement or a written agreement to commence bargaining) does not apply to any of the respondent employers.

• [20] Leaving aside the majority support requirements of s.249(1B)(d) to which I will return, I am satisfied that the other requirements of s.249(1B) of the FW Act have been met.

Have the requirements of either ss.249(2) or 249(3) been met?

• [21] It is s.249(2) of the FW Act that applies here. For reasons set out earlier, this is conceded, and I am satisfied that the respondent employers carry on similar business activities and are franchisees of the same franchisor, or related bodies corporate of the same franchisor, or a combination of these business relationships. There is also material[6] before the Commission that provides some further foundation for this conclusion.

• [22] Accordingly, I am satisfied that the requirements under s.249(2) of the FW Act have also been met.

• [23] For reasons previously stated, s.249(1)(b)(vi) of the FW Act which requires that the operations and business activities of each of the respondent employers are reasonably comparable with those of the other employers that will be covered by the Agreement, does not apply in this case.

• [24] Section 251A of the FW Act prevents an authorisation of this kind being made if it were to cover employees in the general building and construction industry. That term is relevantly defined in s.23B and I accept the common position that the authorisation, if made, would not cover such work or employees undertaking that work.

• [25] Accordingly, I am satisfied that the Agreement will not cover employees in relation to general building and construction work. This meets the requirements of s.251A of the FW Act.

• [26] In general terms, the Commission must be satisfied that a majority of the employees who are employed by the relevant employer at a time determined by the Commission and who will be covered by the agreement want to bargain for the agreement as stated in s.249(1B)(d) of the FW Act. This is to be applied with respect to each respondent employer.

• [27] Section 249(1C) also provides that the Commission may work out whether a majority of employees want to bargain using any method it considers appropriate. The SDA seeks to rely upon the petitions of employees collected at each of the workplaces within the businesses conducted by the respondent employers (petitions). I have determined that it is appropriate to have regard to the SDA petitions in my assessment of the majority support requirement.

• [28] By consent of the parties, in the lead up to the hearing of this matter the Commission conducted a preliminary comparative exercise of the names disclosed on each petition with the relevant names provided by each relevant employer. By agreement, this was undertaken on a confidential and without prejudice basis adopting 14 April 2025 as the reference date.

• [29] A preliminary report issued by the Commission on 28 May 2025 (preliminary report) indicated that a majority of the employees at each of the respondent employers had signed the relevant petition.

• [30] The results disclosed in the preliminary report included majorities as follows:

• Colasante & Mario Verrocchi: 29 valid signatories of a cohort of 46;

• S. Gance Patricia Colasante & Joyce & Sam Pharmily Trust: 13 valid signatories of a cohort of 20;

• Marcello Verrocchi: 35 valid signatories of a cohort of 69;

• Patricia Colasante & Mario Verrocchi: 21 valid signatories of a cohort of 35;

• Philip Colasante Pharmacies Pty Ltd & Pharmec Pty Ltd: 30 valid signatories of a cohort of 53; and

• Patricia Colasante Pharmacies Pty Ltd & J.A Seman & Z.A Seman: 23 valid signatories of a cohort of 38.

• [31] Further, that in relation to two of the employers originally named, there was no such majority. As previously stated, the application was amended by leave to remove these parties.

• [32] The SDA and the respondent employers have adopted the 'findings' of the preliminary report in terms of the petitions and employee numbers disclosed. This is appropriate in the circumstances given the nature of, and diligence attached to, that process. The SDA relies upon the preliminary report, the contents of the petitions and the evidence now before the Commission to meet the majority support requirement. However, the respondent employers contend that the Commission cannot be satisfied of this requirement on a number of grounds including on the basis that:

• The 'facial' majority disclosed by the SDA's petitions is insufficient for the Commission to form the requisite state of satisfaction; and

• There is no proposed "agreement" of the requisite kind in respect of which the majority of the relevant employees could be said to want to bargain.

• [33] I will return to the positions of the parties and the evidence shortly.

• [34] In The Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd & Others[7] (APESMA v Great Southern), a Full Bench of this Commission comprehensively considered the majority support requirement in the context of an application of the present kind. It said:

"[237] The immediate question is whether we are satisfied that a majority of employees at each of the Respondent Employers want to bargain for the proposed agreement. The fact of a majority vote at each employer in support of the Ballot question is not in dispute. It is the pre-ballot information and other processes adopted by APESMA that have been brought into issue by the Respondent Employers. Further, although the point of time for the assessment of the majority in terms of the number of employees to be considered is set by the Commission, the determination of whether there is majority support is to be made as at the date of the decision using the available evidence. In this regard, we consider that the approach confirmed by the Full Bench in Kantfield v The Australian Workers' Union in relation to majority support determinations should generally be applied given the analogous statutory setting.

[238] As is the case in the provisions dealing with majority support determinations, the Commission has broad discretion to determine the method of working out whether a majority of employees want to bargain for the agreement as s.249(1D) of the Act provides that the Commission may use 'any method [that it] considers appropriate'. This same language is used in s.273(2) of the FW Act. In respect of s.273(2) of the FW Act the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) states:

"It is at the discretion of FWA what method it uses to work out whether a majority of the employees want to bargain (subclause 237(3)). Methods might include a secret ballot, survey, written statements or a petition..."

[239] In approaching our consideration of whether a majority of employees want to bargain, we accept that APESMA must satisfy the Commission of this requirement and that the rebuttable presumptions that operate for other requirements do not apply. That is, as the relevant terms of the FW Act requires satisfaction as to this matter, APESMA as the party seeking to invoke the jurisdiction bears the risk of failure if the material before the Commission is inadequate to permit the requisite state of satisfaction to be reached. It is also the party with the access to the available evidence to inform the Commission. Further, we consider that the notion of the (majority of) employees wanting to bargain involves a consideration as to whether the evidence demonstrates that this is the case. In this regard, APESMA seeks to rely on the results of a ballot to establish majority support. In this regard, we note that reliance on ballots as a means of working out whether a majority of employees want to bargain is a common practice of the Commission in applications for majority support determinations and the Explanatory Memorandum suggests this was contemplated. Noting that the same language is used in s.249(1D) we see no reason to depart from such an approach, which 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.

[240] In the absence of requirements with s.248(1B)(d) akin to 'genuine' or 'informed' support, we do not consider that these notions should be implied into the provision. However, in this case the Respondent Employers contend that the process leading to the Ballot involved misrepresentations and that APESMA provided inaccurate, incomplete or one-sided information which invalidated the employees' apparent consent and it is appropriate to consider whether the Ballot here is an accurate reflection of the employees' desire to bargain. Consistent with the approach adopted by the Commission to the consideration of support for bargaining in a majority support determination application, this may, where relevant and appropriate, involve an assessment as to whether the Ballot was falsely derived or the responses achieved by duress or coercion. We add that there is no suggestion of the latter in this case. The notion of being falsely derived may include consideration as to whether any material misrepresentation was involved in garnering backing for the proposal that would vitiate the apparent support. That is, whether the otherwise apparent wish to bargain itself is vitiated, bearing in mind that the statutory test remains whether the majority wish to bargain. Matters relevant to the consideration of alleged misrepresentations, and potentially more generally, may include the nature of the information provided to the employees, the nature of the Ballot questions and what may reasonably be implied from an affirmative answer, taking into account the circumstances and nature of the employees involved."

• [35] Recently, the Full Federal Court upheld this approach[8] and stated:

"214 We do not accept that the Commission erred in its construction of the provision. It is clear from its reasons, at FB[240], and how it ultimately dealt with the alleged deficiencies or claimed misrepresentations, that the Commission understood, as part of its determination of whether APESMA had satisfied the Court that the employees "want to bargain", consideration should be given to all of the circumstances leading up to the ballot, including what was communicated to employees as to the process and potential effect of bargaining.

215 The legislative scheme calls for the Commission, in a number of circumstances, to be satisfied that a majority have cast a vote, without being exhaustive, see for example, ss 182(1), 209, 216A, 216BA, 216C, 216CB, 216D, 216DC, 216E, 221, 237 of the FW Act.

216 It is apparent from these provisions, as with s 249(1B)(d), that Parliament has left to the Commission to determine how it will be satisfied that the majority of employees want to bargain without the degree of prescription required in other parts of the Act. This is demonstrated by contrasting this provision with others in the Act. For example, s 186(2)(b)(i) requires that the "agreement has been genuinely agreed" and apparently noting the ambiguity of the expression "genuinely agreed" thereafter sets out at s 188B what is to be taken into account when determining whether an enterprise agreement has been genuinely agreed. Furthermore, a different approach was adopted in the drafting of s 216EB which specifically requires, in addition to being satisfied of the majority vote, that there are no other reasonable grounds for believing that a majority of the affected employees who cast a valid vote did not approve the variation.

217 The use of adjectival descriptors, such as "informed", "properly informed" or "genuine" may or may not be helpful in a particular case given the level of subjectivity and therefore associated uncertainty of those terms. Ultimately, it is a question for the Commission to be satisfied of whether the majority "want to bargain". Upon review, the Court is concerned with whether, upon considering what s 249(1B)(d) required, the Commission attended to that task as required by the statute.

219 Whatever descriptors are used, the evidence reveals, consistent with the various approaches taken by the Commission, in the above-mentioned cases, that close attention was given by the Full Bench to the circumstances, in order to establish whether the applicable statutory requirement was met.

220 What is evident from the consideration of the Full Bench's reasons is that it did, in fact, consider, in detail, APESMA's communications with the employees, acknowledged regrettable deficiencies and inaccuracies in this regard, but was ultimately satisfied, upon a review of all the circumstances, including the communications, that the requirements of s 249(1B)(d) had been met. It is clear that it did consider whether the employees understand what they were voting for, the process and effect of the proposed authorisation.

225 What is clear from the Full Bench's reasoning is that it assessed all the evidence and was ultimately satisfied that the majority of the employees wanted to bargain (as reflected in the ballot). This is not to say that the Full Bench proceeded on the premise that the provision of the ballot results was sufficient in the circumstances nor that it was not required to consider the relevant communications.

226 It is apparent from the Full Bench's reasons that it considered the submissions and evidence.

227 Consideration was given to the fact of APESMA advocating for the SIEA application (FB[269]) and to the allegation of the employees not being provided with sufficient or accurate information about the proposed ballot process, namely, the length of time the process would take and that each employer would have to agree to put a proposed agreement out for the approval of the employees (FB[270]-[274]). The Full Bench engaged with, but dismissed, the allegation that APESMA had misrepresented to employees that the "raising of industry standards" was a guaranteed outcome of the enterprise agreement negotiations: FB[275].

230 It was apparent that the Full Bench recognised the regrettable circumstance that APESMA made bald assertions that common law contracts are not enforceable and can legally be unilaterally changed: FB[281]. However, the Full Bench, went on to state that such statements "must be considered both within the context of the entire communications and information, and the implications of such contracts in the relevant workplaces including those set out above": FB[281]. It was open for the Full Bench to consider the statements within the entire context, including (contrary to Ulan's submissions) by reference to the fact that the SIEA Employees were senior managers and persons with significant responsibilities and where some of them had enterprise bargaining experience: FB[267]."

• [36] The SDA relied upon the evidence[9] of Ms Lisa Carson, an Organising Coordinator with the SDA. Further, the following six Organisers of the SDA were summoned by the Commission to give evidence at the request of the respondent employers:

• Mr Beau Buick
• Mr Chris Matonti
• Mr Patrick McLachlan
• Ms Shae Monopoli
• Mr Jake Tanner
• Ms Simone Ward

• [37] With the exception of Mr Matoni, who was not required, Ms Carson and each of the other SDA Organisers were called by the respondent employers and were examined. I have had regard to all of the evidence now before the Commission.

• [38] I found elements of the evidence of Ms Carson to be unsatisfactory. I accept that Ms Carson was attempting to assist the Commission and was honest; however, her inability to recall details of her role in the petition campaign, the largely indirect nature of her evidence, and the inconsistency of some elements of that evidence has impacted upon the weight that can be afforded. As to the other Organisers, I consider that their evidence was honest and shed some light on the process adopted for collecting the signatures on the petitions. The apparent absence of a full understanding of the purpose and the context of the petitions demonstrated by some of the SDA officials, which is likely to have influenced the verbal explanations given to employees, is something that I have also weighed into my considerations.

• [39] The evidence before the Commission indicates that at least some of the employees who may have signed the petitions are young workers.[10] I accept that these employees are unlikely to have significant workplace experience.

• [40] In general terms, the evidence also reveals that the process adopted by the SDA in relation to the petitions included that having reviewed its membership and the discussions with at least some members across the 'Chemist Warehouse' network, the SDA determined that it would pursue a "majority support" campaign to seek the required membership support to commence bargaining across that network in South Australia. It also at some point settled upon the scope of employees to be covered by the proposed enterprise agreement in line with that sought in this application.

• [41] The SDA also developed a common petition document and an 'explainer'. The petition document when completed became the relevant petitions and stated the following as the basis for seeking the employees' signatures:

1. We want to bargain for a single interest employer agreement with our employer and with other employers and their employees; and

2. The single interest employer agreement we seek is one that covers:

(a) Our employer and as many other employers operating "Chemist Warehouse" branded pharmacies that the Fair Work Commission considers appropriate; and

(b) The employees of those employers working at a Chemist Warehouse pharmacy.

1. We permit the SDA to rely on this petition in the Fair Work Commission to show that a majority of employees wish to bargain as above.
2. We permit the SDA to detail the coverage of the agreement, i.e. which job roles or classifications are covered, at the SDA's discretion.
3. Each of us have signed this petition of our own free will without anyone pressuring us in any way to sign this petition

The SDA intends to provide this petition to Fair Work Commission in confidence if an application is made for a single interest employer authorisation. The names listed on this petition will not be provided to the employer by the SDA"[11]

• [42] The explainer document (explainer), which was available to be handed to employees that were approached to sign the petitions when an SDA Organiser attended the workplaces as part of the campaign, or in some cases left in the workplace, provided as follows:

The SDA is seeking workers' support to commence negotiations for an Enterprise Agreement with Chemist Warehouse.

This Agreement would cover workers at Chemist Warehouse branded pharmacy sites in South Australia and set out your pay and conditions for a set period of time.

Negotiating an Agreement provides workers with a say on their entitlements at work including wages, rostering rights, leave entitlements and more.

Chemist Warehouse workers are currently covered by the Pharmacy Industry Award, the terms of which are determined by the Fair Work Commission.

An Agreement is the result of enterprise bargaining where an employer and workers (who are generally represented by their union) directly negotiate entitlements in the workplace.

Agreements must leave workers better off than they are under the Award e.g. an Agreement may include higher rates of pay or rights regarding roster changes.

By negotiating Enterprise Agreements, the SDA has negotiated above-Award pay and conditions at other retailers and distribution centres across the country.

Before formal negotiations begin, the SDA will survey workers to find out what you want to see improved or changed. Your feedback will be compiled and used to form our Log of Claims - which will set out our priorities for the negotiation meetings.

We will then meet with Chemist Warehouse to discuss our claims and negotiate and draft the terms of the Agreement.

Once an Agreement is drafted and finalised, it will be presented to workers in full and you will have the chance to vote on whether or not you support it.

If there is a majority yes vote amongst the workers who choose to vote, the Agreement will then be reviewed by the Fair Work Commission before it takes effect.

Enterprise Agreements have an expiry date, which is usually 2-3 years from the commencement date. As the expiry date approaches, the SDA will seek to negotiate a new Agreement.

What if Chemist Warehouse don't want to bargain?

If a majority of workers support bargaining for an Agreement and Chemist Warehouse indicate they do not wish to commence bargaining, the SDA will make an application to the Fair Work Commission which would compel Chemist Warehouse to bargain.

Chemist Warehouse can be compelled to bargain if a majority of workers sign the SDA's petition supporting bargaining.

Improved junior rate percentages for workers under 20 years old

Strong dispute resolution processes to quickly resolve workplace issues

Stronger rights for casuals to convert to permanent employment

Strong rights around roster changes and the right to consultation

Ability for part-time workers to increase contract hours

• [43] The explainer also contained at its conclusion an invitation to "Join the SDA", with reference to "better wages and conditions, protection and security at work and advice and support".

• [44] The SDA officials referred to earlier in this decision carried out multiple visits to the relevant workplaces and sought to maximise the number of employees who could directly engage with them. The evidence is that the petitions were provided to employees who were met during right of entry visits or who otherwise sought to sign the document. The evidence is also that the explainer was generally offered to the employees who were provided with the petition. In many cases, the officials gave each employee a copy of the explainer and at least two organisers ensured that each employee approached was given an explanation.[13] Further, the explainer was also read by some and potentially many, but not all, employees before signing the petition. Others received the explainer but read it after signing the petition or may not have read it at all. Further, not all employees took the explainer. In some cases, in one-on-one meetings the Organisers further explained the purpose of the petition based around that explainer. Those explanations did not follow a common script, and where given, sometimes involved reference to the notion of seeking support for a "majority support campaign" or for a "majority support determination". The evidence is also that where an explanation was given, it was generally based upon the explainer document.

• [45] With two exceptions, the only evidence about any express explanation of the intended scope of the proposed agreement is that this was stated on the petitions and the explainer documents. In one case, an Organiser indicated that he had communicated generally, and specifically to an employee who subsequently signed the petition, that Pharmacists would be covered by any agreement. [14] The intended coverage was also described by that Organiser as including retail and science staff and Assistant Pharmacists.[15] In the other case, the explanation was that Pharmacists in charge would not be covered.[16] These were not a complete explanation of the SDA's intention nor entirely consistent with the authorisation as now sought which includes Pharmacists in classifications A.7 and A.8 of the Award, but expressly excludes from coverage, Pharmacists in Charge and Pharmacist Managers. Given the communications, I accept at least in some cases, employees may have been left with the impression that Pharmacists more generally may be covered.

• [46] The petitions were generally signed by employees during breaks and shift changes at their workplace, and at other times and locations. The Organisers concerned were responsible for retaining and then centrally recording each page of the petition document. I am satisfied that the integrity of the physical petition documents was maintained by this and the related process utilised by the SDA.

• [47] For the purposes of s.249(1B)(d) of the FW Act I have, with the concurrence of the parties, adopted 14 April 2025 as the reference date; that is, the date determined by the Commission as the applicable time for the assessment of the majority support requirement. This date also accords with that used for the preliminary report due to its proximity with the petition process undertaken by the SDA.

• [48] The onus of demonstrating that the majority support requirement has been met rests with the SDA. In general terms, the SDA contends that it has provided evidence demonstrating a majority at every respondent employer, explaining in detail the process by which that evidence was obtained and annexing documentary material associated with its collection. It further submits that by contrast, the respondent employers have led no evidence on this question and have not identified any irregularity or impropriety that would taint the SDA's evidence so as to cause the Commission to doubt its probative value and thereby the existence of majority employee support.

• [49] The SDA also contends that the propositions relied upon by the respondent employers to oppose the relevant finding are unsound and there is no tenable basis upon which the proposed authorisation should not be made. It is convenient to further discuss the SDA's position in more detail later.

• [50] The respondent employers contend that the facial majority recorded from the petitions in relation to each of them should not satisfy the Commission. They do so on the following grounds:

• There must be some basis on which the Commission could rationally conclude that the signatory (i.e. the employee) was aware of, and had some degree of understanding of, what they were expressing their support for by signing the Petitions and could rationally be satisfied that the facial support was not falsely derived.

• • There is no evidence that the employees had any appreciation of the nature of, much less the consequences of, the election they were being asked to make (to pursue a multi-employer agreement) or the process they were being asked to indicate their support for. Further, the Petitions and the Explainer were "replete with inaccuracies, inadequacies, and ambiguities; and the paucity of material returned pursuant to the Order for Production made by the Commission on 10 July 2025 supports the conclusion that no adequate explanation was ever provided to the covered employees."[17] The Explainer was handed to employees when they signed the petition therefore the employees were not afforded an opportunity to meaningfully review and consider the content of the document. Some employees signed the petition without taking the explainer document. There were no script/briefing documents the Organisers used nor was there any referral to external information.

• Any information or understanding given to or held by the employees must have come from the petitions and the explainer document. Any information provided by the organisers would have been unsatisfactory as they did not themselves understand the purpose of the petitions or the proposed bargaining process involved, and often provided misleading statements and representations about the effect of the Petitions. There was no evidence of which Organiser was allocated to which store, and the signatures they obtained.

• Absent a proper evidentiary foundation for the Commission to conclude that the relevant employees had a proper understanding of the effect of the Petitions and, moreover, that the facial support was not falsely derived, the Commission "cannot rationally form the requisite state of satisfaction."

• The circumstances and nature of the employees concerned was such that the employees did not have meaningful experience or familiarity with enterprise bargaining. None of these employees are covered by an enterprise agreement. The Officials conceded certain covered employees are young, part time and often in their first job. On this basis, the Commission should approach the Majority Support Criterion as though the only information the covered employees had available about a Single Interest Employer Authorisation (SIEA) and enterprise bargaining is that which there is evidence of the SDA providing the covered employees with.

• The narrow margins of the facial majority in this matter necessitate closer scrutiny on the Commission's part. This requires an examination on the explanation provided to the employees. A narrower margin of support is likely to have been eroded if disclosure of the complexities and consequences of the SIEA process had been explained.

• [51] The respondent employers also contended that they were not required, nor was it feasible, for them to produce evidence of employees who had been misled about, or held a mistaken understanding of, the proposal the employees were requested to support. That is, it is the SDA that bore the onus, and it must demonstrate the required majority want to bargain.

• [52] In relation to the contended absence of a (proposed) agreement, the respondent employers posit that:

• Unlike the requirements for a majority support determination, which are concerned only with whether a majority of the relevant employees 'want to bargain', the requirement under s.249(1B)(d) is concerned with whether a majority of the relevant employees 'want to bargain for the agreement' (emphasis added).

• It follows that before the Commission can be in a position to determine whether it is satisfied of this fact, it must first identify the (proposed) agreement. This is an essential step for two separate, albeit related, reasons:

• • First, the Commission needs to be satisfied that the proposed agreement referred to in the application is the same as the agreement that the relevant employees want to bargain for. If there is a misalignment here, then it follows that the SDA will be unable to establish that the employees want to bargain for 'the' agreement. In reaching this state of satisfaction, it is of course necessary for the Commission to be clear on who the parties to that agreement are (or, put another way, what the proposed coverage of that agreement is). The respondent employers accept that a 'proposed agreement' need not have settled terms, proposed drafting or be in a form that is capable of approval by the Commission; it may simply be an idea or a series of claims. However, for an agreement to be proposed, it requires parties. There can be no agreement (or proposed agreement) without parties.[18] Equally, if there is misalignment on the parties to that proposed agreement, it is not the same agreement.

• Second, in order to assess whether a majority of employees who are employed by the employer at a time determined by the Commission who will be covered by the agreement want to bargain for the agreement, it is necessary for the Commission to be clear on who precisely the agreement is proposed to cover - both employees and employers - so that this quantitative assessment can be made.

• [53] In that light, they contended that if there was an agreement, that agreement was a different agreement to that which is now the subject of the application.

• [54] Consistent with the above, the respondent employers further contend that the SDA did not identify with any certainty which particular employers or group of employees (their classifications/roles) would be a party to the agreement and accordingly, there was no proposed "agreement" of the kind required by s.249(1B)(d) at the time the relevant petitions were signed for which the Commission could be satisfied the relevant employees want to bargain. The petitions and communication by the Organisers put to the employees were inconsistent with the agreement and scope that is now the subject of this application.

• [55] At the time of signing the petition, the covered employees generally had no knowledge about whether Pharmacists in Charge and Pharmacist Managers would be included in the scope of the agreement. The respondent employers contend these roles are senior in nature, difficult to replace, likely to possess a stronger bargaining position and have greater leverage than other junior staff, and other covered employees may have chosen not to sign the petition if they were aware of this.
• [56] The respondent employers did not lead witness evidence in this matter however, they relied upon the evidence arising from the cross-examination of the SDA Organisers and from documents tendered. In terms of other evidence, they contended that their capacity to lead evidence from those involved in signing the petitions was in part restricted due to the employee names on the petition being redacted.

• [57] The respondent employers assert that the SDA did not discharge its onus to establish that the majority of covered employees at each employer want to bargain for the agreement, and the Commission cannot be satisfied the covered employees want to bargain for the agreement. On the basis the majority support criterion has not been satisfied, they contend that the application must be dismissed.

• [58] Finally, the respondent employers contended that the majority support requirement being satisfied in respect of only some, but not all, of the employers named in an application is not one of the circumstances contemplated in s.250(2). This they submit is an indication the legislature did not intend for the Commission to be able to make an SIEA in such circumstances. If the Commission is not able to reach the requisite state of satisfaction in respect of the majority support requirement it is open to the Commission to work out whether a majority of employees want to bargain using any method the Commission considers appropriate. That could extend to the Commission undertaking its own enquiries. However, s.249(1C) is permissive, not mandatory and the Commission is not required to undertake further enquiries. The respondent employers contend that the Commission should not step in to "salvage" the application when the SDA has not properly considered the genuine wants of the workgroup; and the incomplete picture of what the petition would achieve, deficient materials and unprepared industrial officers has "poisoned the well".

• [59] In reply and final submissions, the SDA contended that the Commission should approach the assessment of the alleged deficiencies in the process of obtaining the majority support of the employees by adopting the following steps:

• Is the alleged impropriety or deficiency made out in the evidence? In that regard, it contended that the respondent employers had an obligation to lead such evidence. If so;

• Did that produce any confusion or misunderstanding? The SDA also contended that the respondent employers had an obligation to make good on any such contention. If so;

• Is that such that is likely to undermine the probative value of the petitions and the apparent majority support?

• [60] In applying this approach the SDA contends that the employer is not relieved of the obligation to advance a positive case.

• [61] The SDA further contends that each of the propositions advanced by the respondent employers should not be adopted on the following basis:

• The task before the Commission is to determine whether on the basis of the information before it and its experience as a specialist industrial relations tribunal, a "majority of employees" want to bargain for the Agreement as proposed in the application. The petitions are simply a piece of information from which the Commission can make conclusions and draw inferences.

• The test of wanting to bargain should be contrasted with the more stringent tests where the Act requires that employees have, for example, 'genuinely agreed' (to an enterprise agreement).

• There is no basis for the contention, that the employees must know, at the time they signed the petitions, the precise scope of the Agreement. That contention does not survive a cursory textual analysis because it is entirely inconsistent with the ability of the Commission to subsequently alter that scope by constraining the employers who are covered in the ultimate authorisation made by the Commission under s.250(2). That power is irreconcilable with the suggestion that the employees must know, at the time of indicating support, the precise contours of the agreement to which the authorisation will relate. Even after an authorisation is made, an employer could be removed pursuant to s.251 which may alter the scope. The agreement may not be voted up at a particular site, therefore the scope may be different to the one originally put. Under s.216D of the FW Act a single interest employer agreement may be varied to add an employer and employees thereby changing the scope. It would contradict the objects of the Act if employees needed to express support for a defined scope and there is no way employees could know how other employees at other sites would vote.

• In the absence of any evidence of impropriety or ignorance on the part of the workforce there is no warrant to look behind the document that has been signed and enquire as to validity of the assent. There is also no requirement imposed by the FW Act for a union to provide any particular level of education as to the process of enterprise bargaining. The signatures of the employees on the petitions should be taken as evidence of their assent given the clear text of the petition and the explainer document.

• There is no submission, and no evidence, that the signatures were in fact falsely derived. The concerns of the respondent employers are exemplary of the speculative concerns roundly rejected in other decisions of the Commission. Further, there is an evidentiary onus on the respondent employers to provide evidence that employees had been misled or that their support for the petitions was wrongly derived. The presence of deficiencies is no barrier to the Commission reaching the required state of satisfaction.

• The standard to which the SDA must satisfy the Commission of their campaign is the standard of the FW Act. It is not the standard of prior campaigns and how the Commission reaches the required state of satisfaction is a matter for the Commission. Further, the standard of any campaign cannot require an applicant to explain to the employees every aspect of making a SIEA and its future implications. That would, in practical terms, be impossible because of how a Union Organiser's right of entry is set out under various industrial instruments.

• • Parliament intended the Commission determine how it will be satisfied that the majority of employees want to bargain without the degree of prescription required in other parts of the Act.[19] The FW Act does not set out the standard or even the method upon which the Commission would reach that state of satisfaction.

• The Commission has substantial latitude as to how to embark upon the task of assessing whether a majority has been reached. The FW Act does not set out the standard or even the method upon which the Commission would reach that state of satisfaction.

• There was no evidence of anyone revoking their assent after reading the explainer document.

• If the Commission were not satisfied in respect of one employer, it may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

• The extent of the margin of support is not relevant, and the Commission should not give weight to speculative concerns.

Consideration of the majority support requirement

• [62] In light of APESMA v Great Southern and Ulan v APESMA, the following appears to be the required approach to the assessment of the majority support requirement in the context of an application of this kind:

• As is the case in the provisions dealing with majority support determinations, the Commission has broad discretion to determine the method of working out whether a majority of employees want to bargain for the agreement. There is an absence of prescription in this regard in contrast to other provisions where a majority employee support or approval is to be assessed under the FW Act.

• As the relevant terms of the FW Act requires satisfaction as to this matter, the applicant party seeking to invoke the jurisdiction must satisfy the Commission and bears the risk of failure if the material before the Commission is inadequate to permit the requisite state of satisfaction to be reached. It is also generally the party with the access to the available evidence to inform the Commission.

• Consideration should be given to all of the circumstances leading up to the process utilised to confirm employee support (ballot/petition etc.), including what was communicated to employees as to the process and potential effect of bargaining.

• The use of adjectival descriptors, such as "informed", "properly informed" or "genuine" may or may not be helpful in a particular case given the level of subjectivity and therefore associated uncertainty of those terms. Ultimately, it is a question for the Commission to be satisfied of whether the majority "want to bargain".
• Where relevant and appropriate, the Commission may make an assessment as to whether the process utilised to confirm employee support was falsely derived or the responses were achieved by duress or coercion. The notion of being falsely derived may include consideration as to whether any material misrepresentation was involved in garnering backing for the proposal that would vitiate the apparent support. That is, whether the otherwise apparent wish to bargain itself is vitiated, bearing in mind that the statutory test remains whether the majority wish to bargain for the agreement.

• Matters relevant to the consideration of alleged misrepresentations, and potentially more generally, may include the nature of the information provided to the employees, the nature of the questions utilised and what may reasonably be implied from an affirmative answer, taking into account the circumstances and nature of the employees involved.

• [63] It is convenient to commence with the notion advanced by the respondent employers that, in effect, there was no agreement about which the employees could have wanted to bargain for. Further, their contention that the agreement now proposed is different to that subject to the petitions and facial employee support.

• [64] The precise statutory requirement has been set out earlier. Amongst other things, the SDA contends that the reference to 'the agreement' is merely to a notional agreement and that given the scope and details of any actual agreement must be a product of bargaining, the statutory requirements should be applied in a practical manner having regard to the statutory purpose of the provisions. The respondent employers emphasise that unlike the equivalent provisions dealing with majority support determinations under s.236 of the FW Act, the issue here is whether the majority want to bargain for the agreement (emphasis added).

• [65] In my view, when s.249(1B)(d) refers to 'the agreement' this must mean the 'proposed' agreement as there is of course at the time no actual agreement and no negotiations have even commenced.

• [66] Although in a related but different context,[20] in considering the import of the expression 'proposed enterprise agreement' a Full Bench of the Commission in The Maritime Union of Australia v Maersk Crewing Australia Pty Ltd[21] referred to earlier decisions and observed:

"[13] The proper construction of the expression 'a proposed enterprise agreement' in s.437(1) was considered by a Full Bench of the Commission in Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia (Mermaid Marine) as follows:

'[42] It is to be observed from the above, that the Act variously makes reference to a "proposed agreement", or the "proposed enterprise agreement" and "proposed single enterprise agreement" to describe in a particular context the same concept, that is, the agreement that is being proposed by a party wishing to bargain or by one that is actually bargaining. That this is so seems to be confirmed by the Explanatory Memorandum to Fair Work Bill 2008 and its description of the use of the phrase "proposed enterprise agreement" in Parts 2-4 and 3-3 as "a generic term", and its reference to the decision in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Union (No 2) in which French J referred to the use of the words "proposed agreement" in s. 170MI of the Workplace Relations Act 1996 as a "generic term [that] allows for a variety of possibilities". The content of a proposed agreement need not be settled nor need the scope of a proposed agreement be agreed between the bargaining parties for that which is proposed by one party to bear the character of a proposed agreement or proposed enterprise agreement for the purposes of the Act...

[46] When read in context, "a proposed enterprise agreement" in s.438(1) seems to us to mean no more than the agreement the bargaining representative applying for an order under s. 447 is proposing at the time the application for a protected action ballot order is made. It is that agreement to which the ballot will relate and it is employees represented by the bargaining representative who fall within the scope of that agreement (or a group of such employees) who will vote on questions of particular industrial action. That the Appellant does not agree with the scope of the proposed agreement or would prefer a broader scope or that the bargaining parties have bargained for a broader scope previously is, for the purpose of identifying the proposed enterprise agreement to which s.438(1) might relate, irrelevant in considering whether s.438(1) prohibits an application being made.' (footnotes omitted)

[14] The views expressed in Mermaid Marine were subsequently endorsed by the Full Bench in Skilled Offshore Pty Ltd v AMWU and others (Skilled Offshore).

[15] Mermaid Marine and Skilled Offshore stand for the proposition that all that is required for there to be 'a proposed enterprise agreement' within the meaning of ss. 437(1) and 443(1) of the FW Act is an 'agreement [which] the bargaining representative applying for an order under [s.437] is proposing at the time the application for a protected action ballot order is made'. Further, in MUA v Swire Pacific Ship Management (Australia) Pty Ltd (Swire) the Full Bench characterised a 'proposed enterprise agreement' as something that one of the parties wants to negotiate: 'There need not be a developed draft, and it may simply be an idea or a series of claims...' While Mermaid Marine, Skilled Offshore, and Swire were all decided before the commencement of s.437(2A), we are not persuaded that the introduction of s.437(2A) affects the reasoning in those cases in respect of this issue.

[16] We should also add that the decision in Mermaid Marine should not be taken as suggesting that an application under s. 437(1) of the FW Act may only be made in relation to an agreement proposed by a PABO applicant. Mermaid Marine was concerned with resolving a contention that because the scope of the agreement proposed by the employer covered employees who were also covered by an operative enterprise agreement whose nominal expiry date had not yet passed and was not due to pass for some significant period, the PABO applicant was prevented, by reason of s.438 (1), from making the application. However the PABO applicant in Mermaid Marine was proposing an agreement which was narrower in scope than the agreement proposed by the employer covering only those employees who were not otherwise covered by the operative enterprise agreement. It is in that context that paragraph [46] in Mermaid Marine is to be understood.

[17] Therefore, it seems to us plainly permissible that a bargaining representative of an employee who will be covered by an agreement proposed by the employer, may apply for a protected action ballot order to determine whether employees wish to engage in particular protected industrial action for that agreement." (footnotes omitted)

• [67] Despite this authority dealing with a different expression - proposed enterprise agreement and the different context, the above approach is at least instructive on the notion of what "the agreement" may mean when used in s.249(1B)(d) and the present context. There is of course no agreement and the (proposed) agreement in the present context must be as proposed by the SDA. It is the applicant and the initiator of the petitions and there is no actual agreement to bargain. In that regard I observe that the proposed agreement involved here is much earlier in the process and more conceptual than that which is operative in cases such as a protected action ballot order application where bargaining for a proposed agreement must already be underway with a more detailed notion of who might be covered and what terms it might provide. Further, although I would certainly accept that there must be some reasonable notion of who might be covered by the proposed agreement and that it is intended to be an enterprise agreement under the Act, it would not be consistent with the statutory scheme to assume a requirement for present purposes that the employees must be aware of all of the precise details of the intended scope or its terms for their apparent wish to bargain for that agreement to be probative.

• [68] The scope of any ultimate enterprise agreement that might be made in the present context is subject to, amongst other factors, the need for majority support for the bargaining for the agreement and other requirements of an authorisation of the kind sought, negotiations between the bargaining representatives, and majority employee support at each of the employers involved for the actual proposed agreement.[22] This context and the fact that the employees are being requested to indicate support for the enterprise agreement right at the very commencement of the potential bargaining process, inform how the present provision is to be applied.

• [69] In APESMA v Great Southern, an issue arose about the subsequent change in the scope of the proposed agreement (and the application) during proceedings, being the deletion of one of the respondent employers from the application and proposed bargaining process. The Full Bench stated:

"[291] We turn to Whitehaven's contention that a change to the scope of the employers to be covered by the Authorisation would, in effect, delegitimise the Ballot and the support of the majority of employees at each employer. We accept that the Ballot question posited an agreement with all of the employers originally listed in the application, including Wollongong Resources and Delta Coal.

[292] However, we do not consider that Whitehaven's proposition has substance for several reasons. The point of reference for the existence of majority support is what the employees at each of the employers were supporting, not what emerges from the application, which occurs later and is beyond their control. This arises from the precise requirements of s.249(1B)(d) of the FW Act, the reference to the point in time as determined by the Commission, and from the scheme of the legislation more generally. This is confirmed by the fact that under s.250(2) and (3) it is contemplated that the Commission would not include one or more of the employers, who would otherwise be covered, where certain circumstances apply. In our view, the legislation directly contemplates a change in the scope of the employers to be covered without undermining the consent of the employees to the bargaining process involving the remaining employers."

• [70] The information provided by the SDA to the employees in this matter set out in broad terms the proposed scope of the proposed agreement. That is, the explainer document referred to all Chemist Warehouse pharmacy "sites" in South Australia. The petitions referred to "Chemist Warehouse" branded pharmacies "that the Fair Work Commission considers appropriate". The original application cited the employers who operated the sites that met the category in the explainer and was only amended because it was unable to demonstrate the necessary employee support at two of the relevant employers. The approach in APESMA v Great Southern appears to be apt.

• [71] In terms of the employees to be covered, the information provided referred to "Chemist Warehouse workers are currently covered by the Pharmacy Industry Award" and the petition document cited "the employees of those employers working at a Chemist Warehouse pharmacy" and "we permit the SDA to detail the coverage of the agreement, i.e. which job roles or classifications are covered, at the SDA's discretion."

• [72] As stated earlier, the application and intended authorisation exclude two categories of employees who are likely to fall within the scope of the Award. That is, workers employed as a "Pharmacist in charge" or "Pharmacist manager". This was not disclosed to the employees and there is some evidence that at least one employee was or may have been advised to the contrary.

• [73] I would accept that in the absence of more detailed direct evidence of what the employees were told about the proposed bargaining, and the state of knowledge of some of the Organisers about the detail of a SIEA, there is also the potential that some of the verbal information provided would have been incomplete. However, the best source of what the employees were in fact requested to endorse is the petition document itself, and to a slightly lesser degree, the explainer. This is so as the explainer was generally provided and made available but was not provided to or read by all of the employees concerned who signed the petition. It was provided to most and the verbal explanations were largely based upon that document. There was no structured or consistent further information provided verbally by the Organisers or in writing to the employees involved. I consider that the explainer itself was a reasonable explanation for the SIEA process.

• [74] The petition document stated its purpose using terms which included:

• We want to bargain for a single interest employer agreement with our employer and with other employers and their employees; and
• The single interest employer agreement we seek is one that covers:

(a) Our employer and as many other employers operating "Chemist Warehouse" branded pharmacies that the Fair Work Commission considers appropriate; and

(b) The employees of those employers working at a Chemist Warehouse pharmacy.

• [75] This, in effect, confirmed that the agreement was intended to be a single interest (multi) employer agreement involving the employee's employer and as many other Chemist Warehouse branded pharmacies as possible, with the final scope of the employers to be determined by the Commission, and the final scope of the employees to be those working at the Pharmacies subject to the SDA's discretion to determine precisely which job roles were to be included. To the extent that the petition itself did not identify that it was South Australian Chemist Warehouse pharmacies that were intended to be covered (as confirmed in the explainer), the campaign and the petition were being run by the South Australian branch of the SDA, and this identity was displayed on the petition. The explainer also confirmed this aspect.

• [76] Notwithstanding the above concerns, I consider that as least as far as the scope of the proposed agreement is concerned, the material before the Commission is consistent with the notion that there was a proposed agreement about which a majority of employees at each of the respondent employers were invited to support bargaining for. Further, I consider that there was sufficient indication given to the employees that what was proposed was an enterprise agreement that the SDA intended to negotiate with the relevant employers. That is, given the statutory scheme and the information provided, I consider that there was a proposed agreement at the relevant time and that the employees' endorsement on the petition was in relation to that agreement.

• [77] However, it is necessary to consider more broadly whether there is sufficient probative material to support the majority support requirement more generally. This also includes the consideration of the various other criticisms raised by the respondent employers.

• [78] It is convenient to deal with the contention advanced by the SDA that an evidentiary burden was placed upon the respondent employers to lead evidence of the consequences of their criticisms. In so doing, the SDA relies upon the following approach perhaps best demonstrated in certain majority support determination decisions where the Commission observes the absence of any evidence from the employers in those matters concerning relevant conduct was a factor. For example, in The Association of Professional Engineers, Scientists and Managers, Australia v Ensham Resources Pty Ltd,[23] the Commission stated:

"[186] If an employer intends to advance an argument inferring that pressure was placed on employees in relation to a petition or other process to gauge support for bargaining or that there was a lack of understanding about what employees were agreeing to, more is required than simply a bare assertion. In the present case there is no evidence upon which I could reach a conclusion that there was anything other than a show of support from a majority of employees that they wished to bargain."

• [79] It appears to me that this notion is very much dependent upon the circumstances and in relation to a SIEA application must be considered in light of the decisions in APESMA v Great Southern and Ulan v APESMA. Where an employer asserts that employees have made complaints to them or in fact have been coerced or have been misled into a mistaken view, the absence of evidence provided by them may be a factor. Further, where criticisms are made based upon the known evidence about the documents and process adopted, these may be advanced and largely considered on their merits, whilst observing that the absence of evidence about the alleged impact may be a factor going to weight. However, as indicated in APESMA v Great Southern, the party seeking to invoke the SIEA jurisdiction bears the risk of failure if the material before the Commission is inadequate to permit the requisite state of satisfaction to be reached. It is also generally the party with access to the available evidence to inform the Commission about the context in which the employees gave their apparent support.

• [80] Although there was a feint suggestion that one of the Organisers did indicate that the employee would obtain better wages and conditions,[24] this was provided in the context of bargaining and the need for an agreement (in general terms) to meet the better off overall test.[25] The explainer also referred to bargaining outcomes at other workplaces. When seen in context of the evidence as a whole and the written material more generally, it is evident that the SDA has not promised outcomes. Rather, it has stated objectives for the bargaining based upon the scheme of the legislation. There was no apparent material misrepresentation involved here in garnering backing for the proposal that would vitiate the apparent majority employee support.

• [81] Further, the partially incomplete or inaccurate information provided about the scope of employees to be covered by the proposed agreement does not in my view rise to a point where employees have been materially misled or their consent falsely derived.

• [82] As stated earlier, the employees were informed that what was being sought was a multi-employer single interest employer agreement. A broad but reasonable explanation of the bargaining process and context was also provided in the explainer. I do accept that the employees were not made aware of some of the potentially more detailed consequences of the election the employees were being requested to make. This includes that in the event of an SIEA agreement subsequently being proposed for approval by the employees, it would require the agreement of all relevant employers and the approval of all (registered) employee organisations involved (or a voting request order made by the Commission), and then only be approved in, and cover, employees at those employers where a majority vote endorsed it.[26] Further, there are limitations on agreement-making options when a SIEA is made.[27] I observe that there are different but nevertheless real implications for any form of agreement-making options under the FW Act and the assessment of the desire or otherwise of the employees to bargain must in my view be approached realistically in that context.

• [83] The apparent reference by some organisers to a majority support determination, rather than a SIEA in some explanations, and the nature of at least some of the workforce, are also factors in this context. However, the information provided was in my view sufficiently revealing, there were no material misrepresentations involved in garnering backing for the proposal that would vitiate the apparent majority employee support and the concerns that I have raised do not in my view reach the threshold where the consent revealed by the petitions has been falsely derived. Further, I am satisfied that the results of the petitions reflect the wishes of the employees to bargain for the agreement.

• [84] In terms of the margin of support at each respondent employer, I observe that this was relatively narrow, and in one case a margin of one employee. Whilst I would not discount this being a factor in some contexts, the FW Act relevantly refers to a majority of the employees. Given my other findings about the employee endorsement process here, it would be mere speculation to not accept the results of the petition due to the margins involved. This would not be an appropriate exercise for the Commission to undertake in this matter.

• [85] As is clear from the authorities referenced earlier, the task of the Commission is to assess whether a majority of the employees engaged at the relevant employers want to bargain for the agreement. I have considered the relevant circumstances including the context for and the process utilised to confirm employee support. This has included what was and was not communicated to employees.

• [86] On balance, I am persuaded that the majority support requirement has been met in the case of each of the respondent employers.

• [87] The proposed authorisation specifies each of the matters required by s.250(1) of the FW Act.

• [88] The findings made apply to all of the respondent employers and for the purposes of s.250(2) of the FW Act, I am satisfied that each should be specified in the authorisation.

• [89] The circumstances contemplated in s.249(1D) and ss.250 (2), (3) and (4) of the FW Act do not apply in this matter.

• [90] Given my satisfaction with all of the relevant requirements, I am obliged to issue the authorisation under s.249(1) of the FW Act.

• [91] Consistent with s.249(4), the authorisation comes into operation on the day it is made and will cease to have effect on the earlier of the day on which the proposed enterprise agreement is made, or 12 months after the date of this authorisation being made. An extension may be sought pursuant to s.252 of the FW Act.

• [92] The authorisation has been issued separately in PR790596.

• [93] The Commission stands ready to assist the parties with the bargaining for the proposed multi-employer agreement should that be sought, such as under a s.240 application or a joint request to conduct a collaborative approaches process to utilise interest-based bargaining.

P Dean (of counsel) with A Amin for the Shop, Distributive and Allied Employees Association.

P Wheelahan KC and J McLean (of counsel) with M Fedeli of Herbert Smith Freehills Kramer for Philip Colasante Pharmacies Pty Ltd & Pharmec Pty Ltd and Others.

[1] The list of original respondent employers was reduced following preliminary proceedings which indicated that the SDA petitions being relied upon were not supported by a majority of the relevant employees in those businesses.

[2] Section 248(2)(c) of the FW Act - is expressed to apply "if any".

[4] Section 249(1)(b)(ii) of the FW Act.

[5] Section 249(1)(b)(iv) of the FW Act.

[7] [2024] FWCFB 253.

[8] Ulan Coal Mines Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2025] FCAFC 127 (Ulan v APESMA).

[10] Tanner PN1264 agreed that the age range of employees was from 15 up to 55; Monopoli PN751-755 confirmed some employees were under the age of 18; Mc Lachlan PN 1093 indicated people who signed the petition could have been 16/17.

[11] LC4 as attached to the statement of Ms Carson - exhibit SDA1.

[12] LC5 as attached to the statement of Ms Carson - exhibit SDA1.

[13] Tanner PN1236 and Buick PN1337 - PN1253.

[14] McLachlan PN10160, PN1117 - PN11131.

[17] Respondent's Outline of Submissions - Court Book p.162-163 at [10].

[18] Citing Maritime Union of Australia v Swire Pacific Ship Management (Australia) Pty Ltd [2014] FWCFB 2587.

[20] An application for a protected action ballot order (PABO) under s.437 of the FW Act.

[21] [2016] FWCFB 1894.

[22] This arises from s.184 of the FW Act.

[23] [2023] FWC 217.

[26] Sections 180A, 181, 182 and 184 of the FW Act.

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