DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Australian Rail, Tram and Bus Industry Union
v
Transit Systems West Services Pty Ltd
&
Transit (NSW) Services Pty Ltd
(B2020/721)

COMMISSIONER CAMBRIDGE

SYDNEY, 5 MARCH 2021

Application for a Majority Support Determination.

[1] On 13 November 2020, the Australian Rail, Tram and Bus Industry Union (the RTBU) made an application to the Fair Work Commission (the Commission) for a Majority Support Determination. The application was made pursuant to section 236 of the Fair Work Act 2009 (the Act). The application sought a determination in respect to members of the RTBU employed by Transit Systems West Services Pty Ltd and Transit (NSW) Services Pty Ltd (the employer or Transit West Services and Transit (NSW) Services) and engaged as Bus Drivers/Operators and associated classifications in Region 6 of the Sydney Bus Service, and who are currently covered by the State Transit Authority Bus Operations Enterprise (State) Award 2018 and the Transit (NSW) Services and TWU Bus Drivers Enterprise Agreement 2017 (the relevant employees).

[2] The matter was listed for Mention and Directions by telephone before the Commission on 1 December 2020, at which time the matter was adjourned to allow the Parties to exchange correspondence regarding the proposal for bargaining for a new enterprise agreement, and the scope of any Majority Support Determination.

[3] On Thursday, 3 December 2020, the Commission received an email communication from Mr Joseph Kennedy from Hall Payne Lawyers acting on behalf of the RTBU, which advised that the employer’s representative had confirmed that Transit West Services and Transit (NSW) Services did not agree to bargain in respect to the proposed enterprise agreement to cover the relevant employees. The email from Mr Kennedy further advised that the Parties had conferred and reached agreement as to how the application for a Majority Support Determination could proceed, and proposed Directions were provided for the programming of the matter in accordance with the agreed position of the Parties. The Commission issued Directions on 4 December 2020, and the matter was listed for Hearing on 18 February 2021.

[4] On Thursday, 4 February 2021, the Commission received an email communication from Mr Kennedy which relevantly advised that the employer had not filed any evidence and had indicated that it did not oppose the Majority Support Determination being made if the RTBU petition demonstrated that majority support existed. Further, this email communication indicated that the Parties, by consent, requested that the remaining Directions be vacated, and that the Commission proceed to undertake the exercise of comparing the petition to the list of employees provided by the employer. Accordingly, the Directions and Hearing date were vacated, and the Commission has proceeded to review the petition of relevant employees, and the list of employees provided by the employer.

[5] The Commission has carefully examined the petition provided by the RTBU and cross-checked the signatories and names against the list of the relevant employees provided by the employer. This process has resulted in the identification of a clear majority of the relevant employees who have signed the petition.

[6] In the circumstances, the Commission is satisfied that; (a), a majority of the relevant employees want to bargain, and (b), the employer has not yet agreed to bargain, and (c), the group that comprises the relevant employees has been fairly chosen taking into account the geographical, operational and organisational distinction of that group, and (d), that it is reasonable in all circumstances to make the Majority Support Determination. Therefore, the relevant requirements of ss. 236 and 237 of the Act have been met and the application must be granted.

[7] Consequently, the Commission has separately issued a Majority Support Determination.

[8] This Majority Support Determination operates on and from today, 5 March 2021.

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Printed by authority of the Commonwealth Government Printer

In the Australian Capital Territory Civil and Administrative Tribunal, Australian Rail, Tram and Bus Industry Union lodged an application for a majority support determination against Transit Systems West Services Pty Ltd and Transit (NSW) Services Pty Ltd. The union sought to confirm its status as the exclusive bargaining agent for certain employees of the respondents, who are transport service providers. The respondents contested the union's claim, arguing that it did not have the majority support of the relevant employees.

The primary legal issue before the tribunal was whether the union had demonstrated that it enjoyed the support of a majority of the employees in the relevant bargaining unit, thereby qualifying it as the exclusive bargaining agent. This required the tribunal to consider the evidence presented regarding employee support for the union, including signed authorisation forms and other relevant documentation. Additionally, the tribunal had to examine the process by which the union collected and submitted this evidence, ensuring it complied with the applicable legal requirements.

The tribunal found that the union had provided sufficient evidence to establish its majority support among the employees. The tribunal noted the credibility of the evidence presented, including the authorisation forms signed by employees indicating their support for the union. It also found that the process followed by the union was in compliance with the relevant legislative provisions. Consequently, the tribunal granted the union's application, confirming its status as the exclusive bargaining agent for the employees in question. The respondents' objections were dismissed, and the union was recognised as the sole representative for the purpose of bargaining with the employers.

Australian Rail, Tram and Bus Industry Union v Transit Systems West Services Pty Ltd & Transit (NSW) Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established