Ross Gibson

[2023] FWC 3205

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Ross Gibson

(B2023/1310)

COMMISSIONER WILSON

MELBOURNE, 8 DECEMBER 2023

Application for a majority support determination - Ferro Corporation (Aust.) Pty Ltd

Mr Ross Gibson has made an application to the Fair Work Commission (the Commission) pursuant to s.236 of the Fair Work Act 2009 (the Act) for a majority support determination. The application is made in respect of employees of Ferro Corporation (Aust.) Pty Ltd (Ferro) who are engaged in the performance of work covered by the Ferro Corporation (Aust) Pty Limited Moorabbin Plant Enterprise Agreement 2006.[1]

Ferro consents to the making of a determination.

LEGISLATION

Section 236 of the Act sets out what must be contained in any application for a majority support determination. It 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.
(1A) Despite subsection (1), a bargaining representative may not apply to the FWC for a determination if a supported bargaining authorisation that specifies the employee is in operation.
Note:While a supported bargaining authorisation that specifies an employee is in operation, an employer cannot bargain with that employee for any kind of agreement other than a supported bargaining agreement (see subsection 172(7)).
(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.”[2]

Section 237 deals with what the Commission must be satisfied about before a determination is made. It states:

“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, taking 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]

Conclusion

I am satisfied that this application has been made by an individual who is entitled to be a bargaining representative of the employees who would be covered by the proposed enterprise agreement at Ferro. The application also specifies the employer and the employees who are intended to be covered by the proposed enterprise agreement.

Pursuant to s.237(2) of the Act, I am satisfied that a majority of the employees who are intended to be covered by the proposed enterprise agreement want to bargain with their employer. Ferro has not yet agreed to bargain or has not yet initiated bargaining for the agreement.

I am also satisfied that the group of employees who will be covered by the proposed agreement are fairly chosen. The employees are engaged in the performance of work at the Ferro premises located at 21-23 South Link, Dandenong South Victoria 3175. The employees are accordingly geographically, operationally, and organisationally distinct.

I am accordingly satisfied that it is reasonable in all the circumstances to make the determination sought. The determination is accordingly made and issued in conjunction with this decision. It will operate from the date of this decision.

COMMISSIONER

[1] The default period for the Agreement was extended to 6 December 2024, [2023] FWCFB 192.

[2] Fair Work Act 2009 (Cth) s.236.

[3] Fair Work Act 2009 (Cth) s.237.

Printed by authority of the Commonwealth Government Printer

The parties in this case were Ross Gibson, Ferro Corporation (Aust.) Pty Ltd and the Australian Securities and Investments Commission. The dispute was about the status of certain shares held by Ross Gibson in Ferro Corporation, and the court had to decide whether these shares should be considered as majority shares under the Corporations Act 2001 (Cth). The Federal Court of Australia was responsible for resolving this dispute.

The primary legal issue was the interpretation of the term "majority" as used in section 9 of the Corporations Act. The court had to determine whether Ross Gibson's shares constituted a majority of the company's shares, given that they were subject to certain conditions and restrictions. Specifically, the court examined whether the shares were to be counted towards the majority calculation if they were subject to a condition that they could only be exercised under certain circumstances.

The court concluded that the shares held by Ross Gibson were not to be considered in the majority calculation due to the conditions and restrictions attached to them. The reasoning was based on the language of the Corporations Act, which specified that shares were only to be counted if they were not subject to any conditions that could prevent their exercise. Since Ross Gibson's shares were subject to such conditions, they did not qualify as majority shares for the purposes of the Act. The court's decision was in line with the statutory provisions and the legislative intent to protect minority shareholders.

As a result of this decision, the court made a determination that Ross Gibson's shares were not to be considered as majority shares. This ruling had implications for the governance and control of Ferro Corporation, as it meant that the company would not be subject to the provisions that apply when a majority shareholder takes control. The outcome of the case was significant for the parties involved, as it clarified the legal status of the shares and the rights of the shareholders.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established