Independent Education Union of Australia

[2012] FWA 6815

[2012] FWA 6815

FAIR WORK AUSTRALIA

DECISION

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

Independent Education Union of Australia
(B2012/829)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 14 AUGUST 2012

Majority support application

[1] By application dated 30 May 2012 the Independent Education Union of Australia (the IEU) sought a Majority Support Determination pursuant to section 236 of the Fair Work Act 2009 (the Act). I heard the application on 2 July 2012 and 17 July 2012.

[2] Sections 236 and 237 of the Act are set out below:

“236 Majority support determinations

(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.

(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.

237 When FWA must make a majority support determination

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

(2) FWA must be satisfied that:

(a) a majority of the employees:

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

Operation of determination

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

[3] There has been a previous application pursuant to section 236 of the Act involving these parties. This application was heard by Deputy President Smith. An order for a ballot to be conducted by the Australian Electoral Office (AEC) was issued on 15 March 2012. 1The ballot result did not provide support for a majority support order.

[4] Mr Chadwick, solicitor, appeared for Pacific Gateway International College (NSW) Pty Ltd T/A ILSC Sydney (ILSC) and opposed this application. Ms Heron appeared for the IEU and called a witness, Mr Warren, in support. I have considered the witness evidence and the submissions of both parties.

[5] I am not persuaded that the proximity in time between this application and the previous application determined by Deputy President Smith supports a finding of abuse of process in relation to this application. Nor am I persuaded that it provides any other basis for dismissing this application.

[6] After considering the evidence and submissions of the parties I am not persuaded that the petition provided by the IEU provides a proper basis for issuing a majority support order.

[7] The context of this application i.e. a college with a changeable workforce, a complex timetable and a list of casual workers, is a difficult context in which to determine whether or not there is, at any one time, a majority of employees seeking to bargain.

[8] The total number of teachers to overseas students of English as a Second Language (ESL teachers) employed at ILSC is in doubt and the number of ESL teachers who seek to bargain is in doubt. I'm not satisfied as to the reliability of the information provided by either party. Despite these difficulties I am satisfied that a significant number of ESL teachers, which may be a majority of such employees, want to bargain.

[9] I am satisfied that it is appropriate that a ballot of ESL teachers be conducted by the AEC. I am satisfied that, in accordance with section 236(3) the results of such a ballot will assist me to determine whether or not a majority of ESL teachers at ILSC want to bargain. The ballot will be a ballot of all ESL teachers employed by ILSC during the period 1 May 2012 to the date of the ballot and all persons qualified to be ESL teachers who have been on the casual relief list of ILSC during that period.

[10] An order will issue today.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Chadwick for Pacific Gateway International College (NSW) Pty Ltd T/A ILSC Sydney

Ms Heron for the Independent Education Union of Australia

Hearing details:

2012
Sydney
July 2 and 17

 1   PR520778

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