National Tertiary Education Industry Union

[2016] FWC 8998

[2016] FWC 8998

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

National Tertiary Education Industry Union
(B2016/1108)

Educational services
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 22 DECEMBER 2016

Swinburne University of Technology – Majority support determination

[1] On 19 October 2016 the National Tertiary Education Industry Union (the NTEU) made an application for a majority support determination with respect to employees engaged in the oversight or teaching of courses in the Pathways and Vocational Education (PAVE) department of Swinburne University of Technology (the University). The persons are those employees who are TAFE teaching staff, staff teaching ELICOS or Pathways programs, and staff responsible for the oversight of courses in TAFE, ELICOS or Pathway programs.

[2] The application was made pursuant to section 236 of the Fair Work Act 2009 (the Act).

[3] The application was the subject of three conferences, directions and the consent of the parties for the matter to be determined in accordance with the requirements of the Act on the basis of the materials lodged with the Commission.

[4] Swinburne University foreshadowed:

• that the requisite majority has not been established; and



• that it is not reasonable in all of the circumstances to make the determination on the basis that the NTEU had made misleading representations.

[5] Sections 236 - 237 states:

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.

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.

[6] Swinburne University had foreshadowed two objections. On 14 December 2016 it submitted:

“Swinburne has now considered its position further in relation to this matter and it does not press either point set out above. Swinburne therefore will not be filing any submissions or other material.”

[7] The applicant submits:

“A clear majority of 60% being 330 persons of 554 employees supported the online or hard copy petition. More than 50% of employees supported the online ballot in any event.

The employer does not present any objection.”

[8] In my view on the material before me the requirements of the Act are met. As provided in section s.237(2) I am therefore required to issue the Determination sought. The Determination in PR588592 will be issued in conjunction with this Decision and will come into operation on the day on which it is made.

DEPUTY PRESIDENT

Appearances:

Mr J Cullinan of the National Tertiary Education Industry Union

Ms E Jenken of Swinburne University of Technology

Hearing details:

Melbourne

2016

26 October, 8 November, 7 December (Conference)

Final written submissions:

2016

14 December – Swinburne University of Technology

14 December – the applicant

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