s.236 - Application for a majority support determination

Application for a majority support determination - whether a majority of employees who are employed by the employer at a time determined by the Commission and who will be covered by the agreement want to bargain - satisfied that there is majority support - majority support determination made

[1] This decision determines an application made by The Australian Workers' Union (AWU) under section 236 of the Fair Work Act 2009 (FW Act) for a majority support determination (the Application). The Application identified Ampol Limited as the Respondent. Without objection, I amended or corrected the Application under section 586 to identify Ampol Australia Petroleum Pty Ltd (Ampol / the Respondent) as the Respondent to the Application.

• [2] Ampol opposed the Application. The sole basis of opposition was that the Fair Work Commission could not be satisfied that a majority of employees who will be covered by the proposed agreement want to bargain at the time the FWC is required to make its determination.[1]

• [3] The Application was the subject of a hearing before me on 28 November 2025. Mr Johnson Ly appeared for the AWU. Mr Ben Sebeih (Corporate Counsel - Employment & Industrial) appeared for Ampol. The AWU relied upon a witness statement of Mr Massimo Gregorio.[2] Mr Gregorio is an Organiser employed by the AWU. Mr Gregorio was cross-examined. Ampol relied upon a witness statement of Ms Taylah Murray.[3] Ms Murray is employed by Ampol as the People & Culture Partner - Terminals. The AWU did not cross-examine Ms Murray. Several employees of Ampol and delegates of the AWU attended the hearing. One such person was Mr Mark Forrest. At the conclusion of Mr Gregorio's cross-examination, I asked Mr Forrest to give evidence. I made this request because I considered that Mr Forrest's role both as an employee who will be covered by the agreement and a workplace delegate of the AWU may assist me in determining whether a majority of employees want to bargain. Mr Forrest is employed by Ampol as an Operations Coordinator and is also a workplace delegate of the AWU. There was no objection to Mr Forrest giving evidence. I asked Mr Forrest some questions and then gave both the AWU and Ampol an opportunity to cross-examine Mr Forrest. Ampol asked one question of Mr Forrest. The AWU did not seek to ask any questions of Mr Forrest. All the evidence and submissions made by the parties has been considered.

[4] For the reasons explained below, I am satisfied that a majority of the employees who are employed by Ampol at a time determined by the FWC and who will be covered by the agreement want to bargain. In addition to satisfaction of that requirement under section 237(2)(a) of FW Act, I am satisfied of the other requirements of the FW Act concerning the making of a majority support determination. I have made a majority support determination.

• [5] The Application identifies the group of employees who will be covered by the agreement as employees of Ampol located at Kurnell Terminal who fall within the classification of Operations Coordinator.[4] The Kurnell Terminal is one of several terminals that Ampol operate in Australia.[5] The terminals receive, store and distribute refined petroleum products that have been imported into Australia or moved from other parts of the network.[6] The agreement will not cover all employees of Ampol. It was conceded by Ampol,[7] and I am satisfied, that the group of employees to be covered by the agreement is geographically, operationally or organisationally distinct. It was conceded by Ampol, and I am satisfied, that the group of employees was fairly chosen.[8] As such, the requirement in section 237(2)(c) of the FW Act is met.

• [6] A further requirement is section 237(2)(b) of the FW Act. It was conceded by Ampol,[9] and I am satisfied,[10] that Ampol have not yet agreed to bargain, or initiated bargaining, for the agreement.

• [7] Ampol also conceded,[11] and I am satisfied, that the AWU has standing under section 236(1) of the FW Act to make the Application.

• [8] The AWU relied upon a petition to demonstrate that a majority of employees want to bargain.[12] The preamble to the petition is reproduced below:

We the undersigned Ampol Operations Coordinators employed at Ampol Pty Limited located at Kurnell Terminal advise that we wish to negotiate an enterprise agreement with our employer to cover the terms and conditions of our employment.

We nominate The Australian Workers' Union to act as our bargaining representative in this matter.

[9] The AWU provided my Chambers with an unredacted version of the petition. The petition contained six columns as follows: Date, First Name, Surname, Work area, Mobile number and Signature. The AWU served a redacted version of the petition on Ampol, which only identified the date that the petition has been signed by each employee and their work area. A total of 29 employees signed the petition. The petition was signed by employees in the period from 12 May 2025 until 21 May 2025.

[10] Ampol were directed to file with the Commission a list of all employees that would be covered by the agreement. There was no requirement to serve that list on the AWU. Ampol filed such a list with the Commission, which identified that there were 31 such employees as at 21 November 2025 (21 November 2025 Employee List).

[11] On 25 November 2025, Ampol were issued with a further direction concerning an employee list. The direction required Ampol to file with the Commission a list of all employees that would be covered by the agreement who were employed by Ampol in the period from 12 May 2025 - 21 May 2025. There was no requirement to serve that list on the AWU. Ampol filed such a list with the Commission, which identified the same 31 employees that were identified on the 21 November 2025 Employee List (May 2025 Employee List). Based on the employee lists filed by Ampol, I am satisfied that there was no change to the number or members of the group of employees that would be covered by the agreement in the period from when the petition was signed until seven days before the hearing. I also note that in answer to a question from me at the hearing, Ms Murray indicated that there had been no turnover amongst the group of employees in that period.

[12] Based on the petition and the employee lists filed by Ampol, I am satisfied that the 29 employees that signed the petition were each identified on both the May 2025 Employee List and the 21 November 2025 Employee List. This establishes, at the time the petition was signed, 93% of the group of employees that would be covered by the agreement signed the petition.

[13] Mr Gregorio gave evidence, which I accept, that the employees approached the AWU for assistance. I was told at the hearing that the employees have been engaged on individual contracts since 2014. It appears from what I was told at the hearing that discussions have been ongoing for some time between Ampol and the employees over some workplace issues. It appears that employee dissatisfaction with those discussions was the impetus for the employees approaching the AWU.

• [14] Mr Gregorio gave evidence, which I accept, that the petition was sent to AWU members via email.[13] Ampol did not contest the fact that 29 employees signed the petition. I am satisfied that that those 29 employees did sign the petition. Mr Gregorio accepted in cross-examination that he did not personally observe any such employee signing the petition and therefore could not say how long each employee took to consider the petition before signing.

[15] The AWU did not lead any evidence about any explanation given to the employees about the petition. Mr Gregorio was cross-examined about any explanation given to the employees. One such question was whether Mr Gregorio had explained "what enterprise bargaining may involve". That is an incredibly broad question given enterprise bargaining is dealt with at great length in the FW Act. This includes Part 2-4 of the FW Act, which prescribes a complex and lengthy set of rules regulating matters such as the permitted content of an enterprise agreement, bargaining and representation during bargaining, approval of enterprise agreements, mandatory terms of enterprise agreements, variation and termination of enterprise agreements, FWC's general role in facilitating bargaining, etcetera. It also includes other Parts of the FW Act, including Part 3-3 of the FW Act which prescribes a complex and lengthy set of rules governing industrial action. In answer to that question, Mr Gregorio answered that he had explained enterprise bargaining to the members. In answer to further questions about any explanation given to the employees, Mr Gregorio's evidence rises no higher than an assertion that an explanation had been given to the employees, especially about 'the process'. This is evident from the following answer given by Mr Gregorio under cross-examination:

Mr Gregorio: So when we spoke about enterprise bargaining, we'll just explain to members what the process is, what the process is and what's what's involved and, and even this going to the Commission.

Mr Gregorio: No, I, I can't confirm that all I can't confirm everything was explained to the members.

[17] In answering such questions under cross-examination, Mr Gregorio did not explain what he actually said to the employees. The AWU did not seek to adduce any evidence from Mr Gregorio through re-examination about what he actually said to the employees. I accept Mr Gregorio's evidence that prior to the petition being circulated to members that he spoke to AWU delegates, including Mr Forrest and likely Mr Ian Price, and also held at least one meeting off-site with some delegates and members. However, as already explained, there was no actual evidence before me as to what was actually said by Mr Gregorio in those discussions. All that was before me was Mr Gregorio's assertions, which, in summary terms, were that 'everything was explained to the members'.

[18] Mr Gregorio also gave evidence that an explanation was also provided by email. I accept Mr Gregorio's evidence that emails were sent to employees. Those emails were not before me. In the absence of those emails, I cannot make a finding about what was explained to the employees in those emails.

[19] Mr Forrest has been employed by Ampol and worked as an Operations Coordinator at the Kurnell Terminal for approximately the past 11 years. Mr Forrest is also a workplace delegate of the AWU. Mr Forrest explained that there were 7 AWU workplace delegates for the Operations Coordinators that worked at the Kurnell Terminal. Mr Forrest gave unchallenged evidence, which I accept, that in his role as workplace delegate that he has regular conversations with his workmates. Mr Forrest gave unchallenged evidence, which I accept, that he is regularly asked by AWU members for an update about bargaining for an enterprise agreement with Ampol. Mr Forrest gave unchallenged evidence, which I accept, that he is asked and provides such an update to members of his own shift, members of the outgoing shift and members of the incoming shift at shift-changeover. Mr Forrest gave unchallenged evidence, which I accept, that he has discussions with the other AWU workplace delegates through means such as a WhatsApp chat group, and occasional face to face meetings. At the hearing, I asked Mr Forrest a question about the views of the employees concerning wanting to bargain at the time of the hearing. This exchange between Mr Forrest and myself is reproduced below:

Commissioner: And based upon the conversations you have had with your work mates as well as the other delegates, what is the view as best as you can tell amongst the employees in wanting to bargain for an enterprise agreement at the moment?

Mr Forrest: I can say that if we'd be happy to do another majority support position, but it would be unanimous this time.

Commissioner: All right. And so you say it's unanimous and why do you say it's unanimous?

Mr Forrest: Just speaking with the one person who was not who who abstained because of his position at the time. He is now of the position that he would definitely sign OK in favour of an in a project room.

[20] Ampol did not challenge that evidence from Mr Forrest. I am satisfied that Mr Forrest's role as a workplace delegate in which he is regularly asked for, and provides, an update to his workmates about bargaining for an enterprise agreement with Ampol means that his assessment that, at the time of the hearing, the employees unanimously want to bargain for an enterprise agreement is reliable and should be given considerable weight. An example of Mr Forrest engaging in such conversations is Mr Forrest's unchallenged evidence, which I accept, that Mr Forrest has spoken to an employee that did not sign the petition (in May 2025) and that employee has since changed his / her mind and now wants to bargain. I make this finding about the reliability and weight because Mr Forrest's assessment of the views of the employees is based on Mr Forrest's conversations with his workmates. Those conversations provide Mr Forrest with a proper basis to understand the views of the employees. Mr Forrest is not making the assessment without an understanding of the views of the employees.

[21] There were two grounds to Ampol's opposition.

• [22] The first ground was whether there was sufficient evidence to satisfy the requirement under section 237(2)(a) of the FW Act. In closing oral submissions, Ampol submitted this was the main issue in dispute. Ampol contended the Commission is required under section 237(2)(a) of the FW Act to reach a genuine and contemporaneous state of satisfaction formed by reference to evidence that is current, reliable and probative at the time of the decision.[14] Ampol submitted that the petition does not provide a basis for the Commission being satisfied of the requirement under section 237(2)(a).[15] As explained, the petition was signed by employees in the period from 12 May 2025 until 21 May 2025. The AWU filed the Application on 3 November 2025,[16] which was at least five months after the petition had been signed. The Application was heard almost six months after the petition had been signed. In very summary terms, Ampol submitted that the AWU had waited too long between collecting the petition and filing the Application. Moreover, that the passage of time meant that the petition was incapable of satisfying the Commission that a majority of employees wanted to bargain.

• [23] Section 237(2)(a) provides that the Commission must be satisfied that 'a majority of employees who are employed by the employer or employers at a time determined by the FWC and who will be covered by the agreement want to bargain'. (emphasis added). I accept Ampol's submissions,[17] which are supported by Full Bench authority, that the point-in-time discretion afforded to the Commission is confined to section 237(2)(a)(i) only, and not section 237(2)(a) more broadly. The Full Bench in Kantfield Pty Ltd t/as Martogg & Company v Australian Workers' Union[18] explained:

[35] .... 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 section 237.

"... there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker."

[37] Applying Peko-Wallsend, it follows that the decision as to whether a majority of employees want to bargain is to be made on the basis of the most current material available at the time of the decision... (emphasis added).

• [24] On application of Kantfield, there is no discretion to determine whether a majority of employees want to bargain by reference to any past date, such as the period in which the petition was signed. I apply Kantfield and consequently accept Ampol's submission[19] that the question of whether a majority of employees want to bargain is to be assessed at the time of the decision.

[25] The application of Kantfield does not render the petition incapable of satisfying the Commission that a majority of employees wanted to bargain. The application of Kantfield requires that assessment to be made on the most current material available at the time of the decision. Kantfield does not contain any guidance as to when the material relied upon by an applicant seeking a majority support determination has passed its 'use-by date' and has ceased to be a reliable basis for forming the state of satisfaction required by section 237(2)(a). The imposition of a decision rule imposing a strict time period after which the material has passed its 'use-by date' would be irreconcilable with the considerable discretion afforded to the Commission to form the necessary state of satisfaction. Such discretion is most obvious in section 237(3) of the FW Act, which enables the Commission to 'work out whether a majority of employees want to bargain using any method the FWC considers appropriate'. (emphasis added). It is obvious that there will almost always be a time gap between the period in which the material relied upon by the applicant to demonstrate majority support is collected (such as a petition) and the date of the decision. It will be a matter of degree and to be determined on a case-by-case basis as to whether the material relied upon by the applicant satisfies the Commission that a majority of employees want to bargain.

[26] I fix the point-in-time under section 237(2)(a)(i) for determining the persons employed as being 21 November 2025. There were 31 such employees as at 21 November 2025. These 31 employees are identified on the 21 November 2025 Employee List.

[27] I am satisfied that a majority of those 31 employees want to bargain. The method that I have used to form this conclusion is the petition and Mr Forrest's unchallenged assessment. I have exercised the very wide discretion conferred by section 237(3) to apply this method in determining whether a majority of employees want to bargain.

[28] I reject Ampol's argument that the petition does not provide a basis for the Commission being satisfied of the requirement under section 237(2)(a). As explained further below in considering Ampol's second ground of opposition, I am satisfied that the petition is an authentic expression of the views of those 29 employees that signed it - that they want to bargain. I reject Ampol's argument that the passage of time means that the petition cannot be relied upon to form the state of satisfaction required by section 237(2)(a). As explained above, the enquiry posed by section 237(2)(a) is to be assessed at the time of the decision and on the most current material available. The petition, along with Mr Forrest's unchallenged assessment, is the most current material available. The fact that it was signed by the employees some eight months ago does not mean that it is incapable of being used as a method to determine whether a majority of employees want to bargain.

• [29] In its written submissions filed in advance of the hearing, Ampol was critical of the AWU for not adducing any evidence of continuing support.[20] In closing oral submissions, Ampol submitted that the AWU could have collected a further petition (presumably at or around the time the Application was made). Ampol went further and submitted that an adverse inference should be drawn against the AWU for not collecting a further petition. The adverse inference sought to be drawn being that a further petition would not have been favourable to the AWU's case. I reject that submission. The making of such an inference would be at odds with the unchallenged evidence of Mr Forrest that the employees unanimously want to bargain. Ampol made a decision not to cross-examine Mr Forrest on that evidence. I will not make an adverse inference of the kind sought by Ampol given it is at odds with the unchallenged evidence that was before me.

[30] In closing oral submissions, Ampol made no mention of Mr Forrest's evidence. Submissions were only made following questions from me. Ultimately, Ampol made very brief submissions. In summary, Ampol submitted that Mr Forrest's evidence should be given not sufficient weight because Mr Forrest's evidence was his own personal belief. Ampol further submitted that there was no direct evidence of when Mr Forrest had the relevant conversations, what those conversations were about, who Mr Forrest spoke to and what questions were asked of Mr Forrest during that process. I agree that Mr Forrest's unchallenged assessment that the employees unanimously want to bargain is his own personal belief. However, that does not mean Mr Forrest's evidence should be given little to no weight. Mr Forrest's unchallenged assessment was based on conversations that he had with the other employees. Mr Forrest engaged in those conversations in his role as a workplace delegate. Mr Forrest's unchallenged assessment was based on his understanding of the views of the employees. I also reject Ampol's criticisms of the lack of specificity. These are all matters that Ampol could have cross-examined Mr Forrest on in order to properly make a submission as to the weight to be given to Mr Forrest's evidence. Ampol chose not to cross-examine Mr Forrest with respect to those matters. I am satisfied that Mr Forrest's unchallenged assessment is a reliable method to understand the views of the employees.

• [31] In very simple terms, Mr Forrest's unchallenged assessment confirms that the majority support that was clearly established by the petition in May 2025 persisted at the date of the hearing. In effect, Mr Forrest's unchallenged assessment is a complete answer to Ampol's submission in its written submissions filed in advance of the hearing that 'no evidence is advanced that signatories reconfirmed their views...'.[21]

[32] The second ground was focused on information provided to employees in relation to the petition and bargaining, and the process by which the petition was collected. Ampol raised several complaints with the information and process. The gravamen being that the petition does not provide a proper basis for the Commission being satisfied of the requirement in section 237(2)(a). One, Ampol submitted that Mr Gregorio did not collect the signatures on the petition, did not observe any employee reviewing or signing the petition, and did not supervise the process directly. Two, Ampol submitted that Mr Gregorio could not say how long employees spent reviewing the petition or considering the impacts it would have. Three, Ampol submitted that there was no information around what bargaining might involve, and that the petition does not identify any potential claims or potential outcomes. Four, Ampol submitted that Mr Gregorio did not verify whether employees understood what they were signing.

[33] I reject those submissions. Section 237(2) & (3) does not prescribe the method that the Commission must use to work out whether a majority of employees want to bargain. The complaints made by Ampol are not based upon any particular requirements specified in section 237 or elsewhere in the FW Act. For example, there is no requirement that the material relied upon by an applicant seeking a majority support determination (such as a petition) has been 'supervised directly' by a person such as a full-time union official. Or, that employees who indicate support for bargaining by, for example, signing a petition must be observed signing that petition by a person such as a full-time union official. There is no minimum period specified as to 'how long' an employee must spend reviewing a petition or considering the impacts that it may have. There is no requirement that an applicant seeking a majority support determination must provide 'information around what bargaining might involve' or the identification of potential claims or potential outcomes. There is no requirement for a person such as a full-time union official 'verifying' that the employees understood what they were signing. Rather, the Commission is provided with a very wide discretion to determine whether a majority of employees want to bargain using any method that the Commission considers appropriate.

• [34] I am satisfied that that the petition is an appropriate method to work out whether a majority of employees want to bargain. In making this finding, I am satisfied that the employees understood the purpose of the petition. The preamble to the petition is expressed in plain language. The purpose of the petition is evident from the preamble. An employee with even the most basic English literacy can read the preamble and would understand the purpose of the petition. I am satisfied that the employees have basic English literacy. I make this finding by reference to the Position Description for the Operations Coordinator role, which was before me.[22] The performance of that role clearly requires basic English literacy. In forming the view that the petition is an appropriate method to work out whether a majority of employees want to bargain, I do not consider that an additional explanation - either in writing or orally - about a topic as broad as 'bargaining' is necessary. I am also unconcerned that Mr Gregorio did not collect the signatures on the petition, did not observe any employee reviewing or signing the petition, did not supervise the process 'directly', could not say how long employees spent reviewing the petition or the impacts it might have, or did not verify whether employees understood what they were signing. I am satisfied that the employees understood the purpose of the petition and that the 29 employees signed the petition. I am satisfied that the petition is an authentic expression of the views of those employees - that they want to bargain. I am satisfied that that the petition is an appropriate method to work out whether a majority of employees want to bargain.

[35] For the reasons explained above, I am required to determine whether a majority of employees want to bargain at the time of the decision and based on the most current material available. The most current material available is the petition and Mr Forrest's unchallenged assessment. I am satisfied that this method is appropriate. Based upon that material, I am satisfied that, at the time of the decision, that a majority of the 31 employees employed by Ampol as at 21 November 2025 want to bargain. In making this finding, I note there has been no change to the number or members of the group of employees that would be covered by the agreement in the period from when the petition was signed until 21 November 2025. Taking these matters into account, I am satisfied that the requirement in section 237(2)(a) is met.

• [36] A further requirement is section 237(2)(d). Ampol did not oppose the Application by reference to this requirement.[23] I am satisfied that it is reasonable in all the circumstances to make the determination.

[37] I am satisfied that the requirements in the FW Act concerning when the Commission must make a majority support determination have been met. In accordance with section 237(1), I must and do make a majority support determination. The determination will be issued separately to this decision. The determination will come into operation on the day on which it is made in accordance with section 237(4).

[1] Paragraph 3 of the Respondent's Outline of Submissions dated 21 November 2025 (RS), Digital Hearing Book (DHB) page 21.

[5] Paragraphs 12 - 13 of the Witness Statement of Taylah Murray dated 21 November 2025 (Murray Statement), DHB page 18.

[6] Paragraph 11 of the Murray Statement, DHB page 18.

[10] Paragraph 7 of the Witness Statement of Massimo Gregorio (Gregorio Statement), DHB page 8.

[11] Paragraph 2(a) of RS, DHB page 21.

[13] Paragraph 8 of the Gregorio Statement, DHB page 9.

[15] Paragraphs 5, 13, 16 - 19 of RS, DHB pages 22 - 24.

[17] Paragraphs 7 - 12 of RS, DHB pages 22 - 23.

[18] [2016] FWCFB 8372.

[19] Paragraph 8(b) of RS, DHB page 22.

[20] Paragraphs 14(b), 15 & 17 of RS, DHB pages 23 - 24.

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