s.236 - Majority support determination

Application for a majority support determination - employees of the Respondent who are covered by the Security Services Industry Award 2020 and who perform work at, or in connection with, the Respondent's contracts to provide air cargo examination services at any freight facility located within the Brisbane Airport Precinct - no formal objection to application - application granted - determination made

• [1] On 11 March 2025, the United Workers' Union (the Applicant) applied to the Fair Work Commission (the Commission) seeking a majority support determination under s.236(1) of the Fair Work Act 2009 (Cth) (Act).

• [2] The Applicant is a bargaining representative of the group of workers employed by ISS Security Pty Ltd Trading AS ISS Security (the Respondent).

• [3] The background to the Application is as follows.

• [4] On 17 January 2025, the Applicant's Industrial Officer, Mr Tom Whiteside, contacted the Respondent's Head of Employee Relations, Mr Dan O'Rourke, to request to initiate bargaining for an agreement to cover the Respondent's employees who are covered by the Security Services Industry Award 2020 (the Award) and who perform work at, or in connection with, the Respondent's contracts to provide air cargo examination services at any freight facility located within the Brisbane Airport Precinct.[1]

• [5] Mr O'Rourke replied to the Applicant's request on the same day with "Received - will respond in due course."[2] Mr O'Rourke asked for a draft log of claims in the meantime, but the Applicant did not have one at that stage.[3]

• [6] On 12 February 2025, the Applicant's organiser, Mr Carl Ratana, sought an update from Mr O'Rourke on whether the Respondent agreed to bargain, stating "Brisbane Freight bargain, MSD or agree to bargain?"[4]

• [7] On 18 February 2025, Mr O'Rourke replied as follows:

I expect we can respond to you by mid-March based on stakeholder meetings. If you cannot wait this late will leave the next actions in your hands.[5]

• [8] The Applicant is a bargaining representative of the employees in question and is entitled under its registered rules to represent the industrial interests of the employees in question. The Application complies with the formal requirements of s.236 of the Act.

• [9] The Respondent has advised that it has no formal objection to the application.

• [10] It is relevant to note that I previously determined[6] that employees of the Respondent who are employed as Freight Aviation Protection Officers (APOs) at the Brisbane Airport Facility are not covered by the ISS Queensland Aviation Security Enterprise Agreement 2022, which has since been replaced by the ISS Queensland Aviation Security Enterprise Agreement 2024.

• [11] I must consider the criteria provided under s.237 of the Act which provides the following:

"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 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.

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

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC 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."

• [12] Directions were issued to the parties on 13 March 2025 requesting the Respondent provide a list of employees of the Respondent who are covered by the Award and perform work at, or in connection with, the Respondent's contracts to provide air cargo examination services at any freight facility located within the Brisbane Airport Precinct.

• [13] The Respondent provided this list to Chambers on 18 March 2025.

• [14] I find that the total number of employees of the Respondent who will be covered by the Agreement is 23.

• [15] Upon assessing the petition signed by employees provided by the Applicant together with the current list of employees from the Respondent, I am satisfied that the majority of employees of the Respondent who would be covered by the Agreement want to bargain in accordance with s.237(2)(a) of the Act. 19 out of the 23 employees of the Respondent who are covered by the proposed agreement have signed a petition seeking a majority support determination. I do note that some employees have signed the petition twice, on different dates. I have disregarded those duplicate signatures in determining whether there is a majority.

• [16] At the date of this decision and the information before me, I am satisfied that the employer has not yet agreed to bargain. This was not disputed by the Respondent.

• [17] In relation to the requirement that the group of employees be fairly chosen, no contentions were raised by the Respondent on this point. I accept the Applicant's submission the group chosen is geographically, operationally and organisationally distinct. The Applicant also submits that it is reasonable to make the determination, noting that I have previously found that this group of employees is distinct from the Respondent's other APO employees.[7] I agree that this consideration is relevant.

• [18] As the above requirements have been met and no contentions were raised, I am satisfied that it is reasonable in all the circumstances to make a determination.

The Determination is issued separately in PR785600.

[1] Annexure UWU-A and UWU-B to Statement of Carl Ratana

[2] Annexure UWU-B to Statement of Carl Ratana

[4] Annexure UWU-C to Statement of Carl Ratana

[6] [2024] FWC 2305

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