The Association of Professional Engineers, Scientists and Managers, Australia v Civil Aviation Safety Authority

[2023] FWC 1137

[2023] FWC 1137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

The Association of Professional Engineers, Scientists and Managers, Australia
v

Civil Aviation Safety Authority

(B2022/1429)

DEPUTY PRESIDENT DEAN CANBERRA, 15 MAY 2023

Application for a majority support determination – application dismissed.

1. This decision concerns an application made by The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) for a majority support determination pursuant to s.236 of the Fair Work Act 2009 with respect to certain employees of Civil Aviation Safety Authority (CASA).

1. Sections 236 and 237 of the Act are in the following terms:

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.

1. This application has a long history, however for reasons that will be apparent, it is unnecessary to set out the background in any detail.

1. Relevantly for present purposes, on Thursday 11 May 2023 CASA initiated bargaining for an enterprise agreement that covers all employees who are the subject of this application for a majority support determination by the issuing of a Notice of Representational Rights (NERR).

1. At a conference listed today, APESMA confirmed that the NERR had been issued and asked the Commission to determine the application based on the material before it.

1. It is not in contention that s.237(2)(b) of the Act requires that the Commission must be satisfied that CASA has not initiated bargaining before a majority support determination can be made. Given CASA has now initiated bargaining, this fundamental prerequisite cannot be met. Accordingly, the application must be dismissed.

DEPUTY PRESIDENT

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