Independent Education Union of Australia - Queensland and Northern Territory Branch v Ohana College Limited T/A Ohana College

[2024] FWC 3194

[2024] FWC 3194

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Independent Education Union of Australia – Queensland and Northern Territory Branch
v

Ohana College Limited T/A Ohana College

(B2024/1452)

DEPUTY PRESIDENT LAKE BRISBANE, 20 NOVEMBER 2024

Application for a majority support determination – employees of the Respondent who are covered by the Educational Services (Teachers) Award 2020 and Educational Services (Schools) General Staff Award 2020 – application granted – determination made.

1. On 11 November 2024, the Independent Education Union of Australia – Queensland and Northern Territory Branch (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).

1. The Applicant is a bargaining representative of the group of workers employed by Ohana College Limited T/A Ohana College (the Respondent).

1. The background to the Application is as follows. On 15 October 2024, the Applicant emailed the CEO of the Respondent requesting that the Respondent confirm their agreement to participate in negotiations for an enterprise agreement.

1. On 24 October 2024, the CEO of the Respondent advised the Applicant that the matter would be referred to the School Board and that the School Board was next scheduled to meet in February 2025. The Applicant objected to this response, foreshadowing that it would be making a majority support determination application in the Commission. The Respondent responded by reiterating that under the school delegations, the decision was one to be considered by the Board, who would not be meeting until February 2025.

1. 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 requirements of s.236 of the Act.

1. The Respondent has advised that if a majority of employees in question support the application, then it does not object to a majority support determination being issued.

1. As a result, 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

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.”

1. Directions were issued to the parties on 12 November 2024 requesting the Respondent provide a list of employees from Ohana College Limited T/A Ohana College and their positions. The Respondent provided a confidential list of employees on 14 November 2024.

1. The employees holding the positions of Principal, Deputy Principal and School Manager have not been counted for the purposes of s.237 of the Act, as these employees are not covered by the Educational Services (Teachers) Award 2020 or Educational Services (Schools) General Staff Award 2020.[1] I find that the total number of employees of the Respondent who will be covered by the Agreement is 52.

1. On 12 November 2024, the Applicant provided a copy of the petition signed by the employees. Upon assessing this petition together with the current list of employees from the Respondent, I am satisfied that the majority of employees want to bargain in accordance with s.237(2)(a) of the Act. 40 out of the 52 employees of the Respondent who are covered by the proposed agreement have signed a petition seeking a majority support determination.

1. At the date of this decision and the information before me, I am satisfied that the employer has not yet agreed to bargain, and that the group of employees who will be covered by the agreement was fairly chosen. This was not disputed by the Respondent.

1. 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.

1. The Determination is issued separately in PR781411.

DEPUTY PRESIDENT

[1] Educational Services (Teachers) Award 2020 cl 4.4(e); Educational Services (Schools) General Staff Award 2020 cl 4.3(b)-4.3(c).

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