[1] On 2 December 2011, the Transport Workers' Union of Australia applied for a majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act). It seeks a determination that a majority of the employees who will be covered by a proposed single-enterprise agreement to be made with M.J. Rowles Pty Ltd wish to bargain with their employer. The application was opposed by the employer.

[2] It is appropriate to set out the provisions of ss.236 and 237 in full:

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

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

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

237 When FWA must make a majority support determination

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

Matters of which FWA must be satisfied before making a majority support determination

(i) who are employed by the employer or employers at a time determined by FWA; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c) that the group of employees who will be covered by the agreement was fairly chosen; and

(d) it is reasonable in all the circumstances to make the determination.

(3) For the purposes of paragraph (2)(a), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

(4) The determination comes into operation on the day on which it is made.

[3] The application was heard in Sydney on 9 December 2011. The grounds advanced in support for a determination were as follows:

1. The Union was contact by a number of employees of the employer in relation to terms and conditions of their employment;

2. The Union began discussions with employees in relation to concerns employees raised;

3. The Union having spoken to a large number of employees at an off site meeting and at the place of work approached the Company to begin discussions around the terms and conditions of their employees' employment;

4. A bargaining notice was sent to the Company on 2 September 2011;

5. The Company's response was to issue employees with an individual contract of employment;

6. A meeting was held with the Company General Manager and company industrial representative with a view to negotiating an Agreement that addressed the employees' concerns and gave the Company certainty over the term of the Agreement. The Company refused to agree to negotiation;

7. The Company stated at this meeting they employed 48 drivers;

8. The Company agreed to hold a meeting of all employees so the Company and Union had an opportunity to address employees in relation to their respective positions with a view to then holding a secret ballot to determine the employees' preference;

9. Not all employees were in attendance. The Union's position was that it would not participate in any vote until all employees were addressed by both the Company and the Union;

10. It was agreed between the parties that the Company would call a compulsory meeting of all employees for this purpose, to date this meeting has not happened;

11. The Union has evidence that in the interim the Company has been approaching employees on a one to one basis and asking employees to sign the individual contract with the promises of permanent employment and re-instatement of RDOs;

12. Attached is a petition from the majority of employees requesting the Company to collectively bargain for a workplace agreement under the Fair Work Act.

[4] The petition referred to above was signed by twenty-six employees during August 2011. Since that time there had been some turnover of employees and others had signed common law contracts.

[5] During the hearing of the application on 19 December, I expressed my reservations about the petition process and suggested a secret ballot would provide a clear expression of the employees' wishes.

[6] Both parties agreed to share the cost of the Australian Electoral Commission (AEC) conducting a postal ballot. Pursuant to s.237(3) of the Act I ordered the AEC to conduct a ballot of the relevant group of employees.

[7] The ballot closed on 27 January 2012 and I have now been formally advised by the AEC Returning Officer of the declaration and results of the ballot as follows:

Number of persons on the roll of voters that voted in the ballot

Number of declaration envelopes admitted to the count

Number of declaration envelopes rejected as not signed

Percentage of persons on the roll who voted in the ballot

Number of voters wanting to bargain (Yes votes)

Number of voters not wanting to bargain (No votes)

Number of voters undecided to bargain (Undecided votes)

[8] Having regard to the results of the ballot it is evident that the majority of employees do not wish to bargain for an agreement which would apply to them.

[9] Accordingly the application for a determination is dismissed.

S Bull and L Lawler for the Transport Workers' Union of Australia

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