s.236 - Application for a majority support determination

Application for a majority support determination - application granted.

• [1] On 17 July 2025, the Australian Workers' Union (AWU) applied for a majority support determination under s.236 of the Fair Work Act 2009 (Cth) (the Act). The AWU contends that a majority of relevant employees who would be covered by a proposed enterprise agreement want to bargain with their employer, iFLY Australia Pty Ltd (iFLY) Trading As iFLY Australia (iFLY) (the Respondent).

• [2] The agreement is proposed to cover employees of the Respondent who are employed in the roles of customer service representatives, customer service team members, instructors, shift supervisors, maintenance co-ordinators, lead instructors and other non-management roles who perform work at three (3) iFLY locations run by the Respondent.

• [3] The locations as identified as being 2 Burns Street, Essendon Fields in Victoria; 395 Hamilton Road, Chermside in Queensland; and 143 Great Eastern Highway, Rivervale in Western Australia.

• [4] Attached to the AWU's application was a copy of a letter dated 2 June 2025, sent to the Respondent's General Manager, Mr Greg Campbell requesting iFLY commence bargaining for an enterprise agreement to cover the employees identified above.

• [5] Also attached is an email reply from Mr Campbell dated 13 June 2025 rejecting this request on the basis the Respondent considers it not a necessary or appropriate measure with respect to the size of its workforce.

• [6] On receipt of the application, I directed the Respondent to provide my Chambers with a list (redacted as necessary) of employees who would be covered by the proposed Agreement to enable the Commission to determine if there is a majority, along with any other submissions or material relevant to the Application. The Applicant was also invited to provide any additional information as considered necessary. The parties were also directed to attend a conference on 6 August 2025 to discuss the application for determination.

• [7] The Applicant provided a series of emails and supporting communication documents, along with petitions recording the signatures of 45 employees of the Respondent.

• [8] The Applicant's material also set out the process undertaken by its representatives to gather the 45 signatures of employees on the AWU petition. The Respondent provided a list of its employees who would be covered by the proposed agreement as recorded in its payroll records on both 17 and 29 July 2025.

• [9] The Respondent also provided written submission to support its material indicating it was opposed to the application being made. The Respondent suggested a safer way for the Commission to proceed in the circumstances was to engage the Australian Electoral Commission (AEC) to conduct a further secret ballot of employees to determine a majority, or otherwise.

• [10] The basis for the Respondent's position was that in the period since the petitions had been signed and collected, a significant change had occurred to the Respondent's operations that may impact the capacity of the Commission to safely determine majority support for the agreement on the material before it. Further, that there was no imperative of time not to take this step, adding it had "heard" reports some employees had been pressured into signing the petitions provided. The significant change reference was that commencing 17 July 2025 the Respondent commenced a consultation period with respect to proposed redundancies at its Brisbane facility, subsequently making several positions redundant.

• [11] The AWU rejected these submissions and pressed there was no reason for the application to not be granted, including that there was no evidence of employees being pressured to sign petitions.

• [12] The Respondent accepted they did not have any evidence to support this assertion. Their position remained a "safer course" was for the Commission to order a secret ballot given the significance of it restructure of its Brisbane operations and that there was no urgency for the order to be made.

• [13] Before a final consideration of the material before me, I sought the parties' views on the need for a further hearing to determine the application. The AWU pressed the order be made. The Respondent relied on its submissions and did not request a further hearing.

• [14] On this basis, I have determined the application on all the submissions and material provided to the Commission as follows.

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

"237 When the FWC must make a majority support determination

(1) The FWC must make a majority support determination in relation to a proposed single enterprise agreement if:

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

(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which the FWC must be satisfied before making a majority support determination.

(i) who are employed by the employer or employers at a time to be 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."

• [16] In relation to s.237(2)(a), the Commission may determine whether a majority of employees want to bargain by using any method it considers appropriate (per s.237(3)).

• [17] If the proposed agreement will not cover all 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' (per s.237(3A)).

• [18] The material before the Commission includes the Form F30 - Application for a majority support determination filed by the AWU. Considering this material, I am satisfised the AWU is a bargaining representative of the employees in question and is entitled under its registered rules to represent their industrial interests. The application specifies the employer and employees who will be covered by the Agreement, and I am satisfied it meets the requirements of s.236 of the Act.

• [19] Supporting its application, the AWU has presented a signed petition of a majority of employees seeking to be covered by the Agreement. Material provided from the employer to the Commission confirms that 45 signatories to the petition are amongst the 57 employees who their records indicated would be covered by the Agreement on 17 July 2025. Or in the alternative, that 38 signatories to the petition are amongst the 51 employees of the Respondent who would be covered by the Agreement on 29 July 2025, following the redundancies in Brisbane.

• [20] Considering the evidence of a clear majority of employees supporting the request to bargain before and after the redundancies, I do not accept this event is of any significance to the requirements of section 237. Therefore, I am satisfied that the requirements of s.237(2)(a) have been met.

• [21] With respect to the requirement in s.237(2)(b), it is not in contest, and I am satisfied that the Respondent has not yet agreed to bargain with the AWU or otherwise initiated bargaining for the Agreement.

• [22] With respect to the requirement in s.237(2)(c), the group of employees chosen are the employees of the Respondent performing non-management roles of the type described above at [2] from their Brisbane, Melbourne and Perth operations. On this basis, I am satisfied the group is geographically and organisationally distinct and has been fairly chosen.

• [23] It is not suggested that there being majority support, it is unreasonable to make the order sought. I am satisfied that this is the case, and that it is reasonable in all the circumstance of this case to make the order as required by s.237(2)(d).

• [24] The only remaining issue to determine is the date for the purposes of s.237(2)(a)(i). The Full Bench in Kantfield Pty Ltd v AWU[1] (Kantfield) at [35] said as follows:

"The power to apply a time-based limitation is confined to section 237(2)(a)(i) and not section 237(2)(a) more broadly. That is, the power to apply a point-in-time limitation in section 237(2)(a)(i) is directed to fixing the time at which the FWC is to determine who are the persons employed only. Therefore, it does not confer a broader power to 'fix" historical or future points in time for other aspects of 237."

• [25] It is also clear from Kantfield at [37] that the decision should be made based on the most current material available to the Commission. In this instance, that material is contained in the AWU's petition as provided to the Commission in supporting documentation, that the last signature was collected on 12 July 2025.

• [26] On this basis, I determine the date for the purposes of s.237(2)(a)(i) to be 12 July 2025, being the last day on which an employee's signature was placed on the AWU petition.[2]

• [27] I am satisfied that the requirements of s.237(2) have been met, and having determined the date for the purposes of s.237(2)(a)(i) is 12 July 2025, I am required by s.237(1) to make a majority support determination. The determination is issued separately in [PR790513].

[1] [2016] FWCFB 8372.

[2] See also AWU v Woodside Energy Ltd [2023] FWC 249 at [345].

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