Independent Education Union of Australia
[2023] FWC 3156
•29 NOVEMBER 2023
| [2023] FWC 3156 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Independent Education Union of Australia
(B2023/1273)
| COMMISSIONER DURHAM | BRISBANE, 29 NOVEMBER 2023 |
Application for a majority support determination. Kimberley College Limited T/A Kimberley College.
On 17 November 2023, the Independent Education Union of Australia – Queensland and Northern Territory Branch (the Applicant/IEUA-QNT) made an application to the Fair Work Commission (the Commission) under section 236 of the Fair Work Act 2009 (the Act) for a majority support determination.
The IEUA-QNT, sought to negotiate a single-enterprise agreement with the following coverage:
“The employees proposed to be covered by the Enterprise Agreement are all employees employed at Kimberley College, 41 Kruger Road, Carbrook covered by:
(i) the Educational Services (Teachers) Award 2020; and
(ii) the Educational Services (Schools) General Staff Award 2020.”
The IEUA-QNT contend that a majority of relevant employees who would be covered by a proposed enterprise agreement want to bargain with their employer. Accompanying the application were copies of correspondence between the IEU-QNT and the employer.
The IEUA-QNT wrote an email to the employer on 17 August 2023 seeking to clarify the employer’s position on when “arrangements for an Enterprise Agreement may commence” to which the employer responded by way of email, dated 28 August 2023:
“(t)he College was not in a position to undertake this process at the time”
The IEUA-QNT wrote to the employer on 5 September 2023 formally requesting the commencement of negotiations for an Enterprise Agreement. The employer responded by way of an email, dated 6 October 2023, stating that
“(t)he Board and the College do not believe that this would not (sic) be in the best interests of the staff of Kimberley College or the College at this time.”
The IEU-QNT subsequently wrote to the employer again on 10 October 2023 advising that it will shortly apply to the Fair Work Commission in accordance with section 236 of the Fair Work Act 2009 (Cth) for a Majority Support Determination. No further advice was received from the employer in relation to this matter, as such the employer had not agreed to bargain.
On 21 November 2023, I issued Directions requiring the parties to file material with respect to the application including material relating to the petitions referred to in the application and a list of all employees to be covered by the proposed agreement. This material was provided to the Commission only, so as to ensure confidentiality.
I note that parties were invited to raise any objections but no objections were raised from either party.
Upon receiving the required materials from the parties, I conducted an analysis to determine if a majority of eligible employees had signed the petition, indicating that they wished to bargain.
In completing this analysis, I compared the names of employees who had signed the petition against the list of employees provided by the employer and was satisfied that a majority of employees wanted to bargain for an enterprise agreement.
Legislation
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 section 237(2) of the Act. An application for a determination is made pursuant to section 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.
I must make a majority support determination if an application has been made before the Commission that satisfies the criteria contained in section 237 of the Act. 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
With respect to the requirements of section 236, the IEU-QNT is a bargaining representative of the employees in question and is entitled under its registered rules to represent the industrial interests of those employees. The IEU-QNT’s application specifies the employer and employees who will be covered by the agreement and as such, has been validly made.
The first matter prescribed by section 237 is whether the Commission is satisfied that a majority of the relevant employees who are employed by the employer at a time determined by the Commission want to bargain. An analysis of the material provided by the parties clearly indicates that there are 100 employees who will be covered by the proposed enterprise agreement. A comparison of these employees, against the petitions provided by the IEU-QNT confirms that at least 54 of those employees want to bargain. I am therefore satisfied that the requirements of section 237(2)(a) have been met.
It is evident from the material provided that the Respondent has not yet agreed to bargain or initiated bargaining in respect of the proposed enterprise agreement. As such, I am satisfied that the requirements of section 237(2)(b) have been met.
Finally, pursuant to section 237(2)(d), given that the statutory requirements have been met and no other relevant issues arise, I am satisfied that it is reasonable in all the circumstances to make a determination.
Conclusion
Having formed the requisite satisfaction in relation to the matters in section 237(2) of the Act, I must make a majority support determination. A determination will be issued with this Decision.
COMMISSIONER
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