Construction, Forestry, Maritime, Mining and Energy Union v Cruise Whitsundays Pty Ltd T/A Cruise Whitsundays

[2023] FWC 256

[2023] FWC 256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Construction, Forestry, Maritime, Mining and Energy Union
v

Cruise Whitsundays Pty Ltd T/A Cruise Whitsundays

(B2022/1813)

DEPUTY PRESIDENT ASBURY BRISBANE, 30 JANUARY 2023

Application for a majority support determination

1. The Maritime Union of Australia (MUA) division of the Construction, Forestry, Maritime, Mining and Energy Union has made an application to the Fair Work Commission (the Commission) under s. 236 of the Fair Work Act 2009 (the Act) for a majority support determination with respect to a group of employees of Cruise Whitsundays Pty Ltd T/A Cruise Whitsundays (Cruise Whitsundays). The application was made on 7 December 2022.

1. In the F30 application, the group of employees, who will be covered by a proposed enterprise agreement, is identified by the MUA as follows:

“…all employees of Cruise Whitsundays Pty Ltd employed under the classifications listed below in the manning and operation of vessels operated by Cruise Whitsundays in the Whitsunday region of Queensland or elsewhere in that state as required.

1) Master;
2) Mate;
3) Engineer;
4) Cruise Director;
5) Deckhand (with Tickets);
6) Deckhand ESS;
7) Marine Biologist;
8) Cruise Attendant;
9) Reefsleep Host;
10) Pontoon Manager;
11) Pontoon Deckhand (with Tickets);
12) Pontoon Deckhand ESS;
13) Pontoon Engineer;
14) Tour Guide; and
15) Apprentice / Trainee”

1. The MUA stated that between 31 October 2022 and 15 November 2022, the Union corresponded with Cruise Whitsundays seeking to initiate bargaining for an enterprise agreement with respect to the group of employees. It is asserted that Cruise Whitsundays refused the request for bargaining on 7 November and 14 November 2022. In support of the application for a majority support determination, the MUA stated that it relied on a ballot of employees it had conducted which showed that a majority of employees who would be covered by the proposed enterprise agreement, wished to bargain.

1. On 7 December 2022, I issued Directions requiring the MUA to file in the Commission material in support of its application addressing the matters in s. 237 of the Act, including material relating to the ballot of employees referred to in the application. Cruise Whitsundays was directed to file in the Commission a list of all employees who would be covered by the proposed agreement as described in the application.

1. Both parties filed the material as required by the Directions. On 12 December 2022, the MUA also filed a statutory declaration of Ms Hannah Joinbee declaring the steps she had undertaken with respect to the conduct of the ballot for the MUA.

1. On 12 December 2022, correspondence was sent from my Chambers to the parties advising that the ballot question posed by the MUA on which the employees voted was “Do you want to bargain for an enterprise agreement with Cruise Whitsundays to cover employees employed in the position/s of Master, Mate, Deckhand, Engineer, Trainee or equivalent?”. The parties were also advised that upon a comparison of the list of employees who voted in support of bargaining and the list of employees provided by Cruise Whitsundays, I had formed a provisional view that a majority of employees wished to bargain for an enterprise agreement.  

1. At a case management hearing conducted on 12 December 2022, the MUA was represented by Mr Samuel O’Sullivan (National Legal Officer) and Cruise Whitsundays was represented by Ms Shivan Marx (General Manager Human Resources – Journey) and Ms Chantel Schroeder (Human Resources Manager – Cruise). Cruise Whitsundays confirmed that, having considered the ballot question posed by the MUA and the information from my Chambers pertaining to the result of a comparison, it no longer had any objection or position to put, in relation to the making of the determination.

Legislation

1. The Commission must make a majority support determination if an application for the determination has been made and if the Commission is satisfied of those matters set out in s.237(2) of the Act. An application for a determination is made pursuant to s.236 of the Act, which provides as follows:

“236        Majority support determinations

(1)        A bargaining representative of an employee who will be covered by a proposed single enterprise agreement may apply to the FWC 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.

(2)        The application must specify:

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

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

1. Section 237 of the Act provides as follows:

“237       When the FWC must make a majority support determination

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

(2)        The FWC must be satisfied that:

(a) a majority of the employees:

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

and

(ii) who will be covered by the agreement;

want to bargain; 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.

Operation of determination

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

Consideration

1. It is not in dispute that the MUA is a bargaining representative of some employees who will be covered by the proposed single enterprise agreement. Although it is arguable that the MUA does not have the right to cover all employees in classifications listed in the application, an organisation of employees can apply for a majority support determination provided it is a bargaining representative for one employee who would be covered by the proposed agreement and it is not necessary that an organisation of employees is eligible to enrol as members and represent all employees specified in an application, who would be covered by the proposed agreement.[1]  

1. It is also not in dispute that the application for a determination specifies the Employer that will be covered, being Cruise Whitsundays, and the employees who will be covered by the agreement, being those outlined above. Accordingly, I must make the determination if I am satisfied of the matters set out in s.237(2) of the Act.

1. The matters in ss. 237(2)(b), (c) and (d) are not in dispute. It is not disputed by Cruise Whitsundays that it has not yet agreed to bargain or initiated bargaining in respect of the proposed enterprise agreement. It is also not in dispute that the group of employees proposed to be covered by the agreement have been fairly chosen. I have taken into account that the group of employees proposed to be covered by the agreement is geographically and operationally distinct. In this regard, the application states that the proposed agreement will cover all employees employed in the classifications listed, engaged in the manning and operation of vessels operated by Cruise Whitsundays in the Whitsunday region of Queensland or elsewhere in that State as required.  No circumstances have been identified that would otherwise make it not reasonable to make the determination sought.

1. I am satisfied on the basis of the list of employees provided by Cruise Whitsundays that there are 125 employees who will be covered by the proposed enterprise agreement. I am further satisfied that as a result of a ballot of employees conducted by the MUA, 76 of those employees have indicated that they want to bargain.

Conclusion

1. Having formed the requisite satisfaction in relation to the matters in s. 237(2) of the Act, I must make a majority support determination. A determination will issue with this Decision.[2]

DEPUTY PRESIDENT

[1] ResMed Ltd v AMWU [2014] FWCFB 2418, upheld by the Federal Court in an application for judicial review in ResMed Ltd v AMWU [2015] FCA 360 per Perry J, and appeal dismissed by the Full Court of the Federal Court in ResMed Ltd v AMWU [2015] FCAFC  195.

[2] PR750069.

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<PR750068>