Transport Workers’ Union of Australia

[2023] FWC 1637

[2023] FWC 1637

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Transport Workers’ Union of Australia

(B2023/388)

DEPUTY PRESIDENT LAKE BRISBANE, 7 JULY 2023

Application for a majority support determination.

1. On 16 June 2023, the Transport Workers’ Union  (TWU) amended its application for a majority support determination to cover only the Aviation Protection Officers (APOs) employed by Trident Services Security Pty Ltd (Trident Security) that perform work at the Sunshine Coast Airport located at Friendship Avenue, Marcoola. I have accepted the amended application.

1. In [2023] FWC 1582, I determined that the Aviation Protection Officers employed by Trident Security are eligible to be covered by the TWU and is an eligible bargaining representative of the APOs.

1. Accordingly, I directed Trident Services to provide a list of Aviation Protection Officers covered by Trident Security hired to work in the Sunshine Coast Airport.

1. Upon receiving the required materials from the parties, I conducted an analysis to determine if a majority of eligible employees had signed the petition.

1. In completing this analysis, I was satisfied that, upon a comparison of signatures and names of employees against the petition against the list of employees provided by the Employer, a majority of employees wanted to bargain for an enterprise agreement.

Legislation

1. 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

(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. I must make a majority support determination if an application has been made before the Commission and where it satisfied the criteria contained in s.237 of the Act. Further to this, s.236 of the Act relevantly provides:

   “236      Majority support determination

(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

1. I am satisfied that the Applicant is a bargaining representative of the employees who will be covered by a proposed single enterprise agreement. I am also satisfied that the application specified the Employer to be covered and the employees who will be covered by the Agreement. I now turn to s.237(2) of the Act.

1. The matters contained in ss.237(2)(a), (b), (c) and (d) are not in dispute. It is evident on the material provided that the Employer did not agree to bargain or initiated bargaining with respect of a proposed enterprise agreement. I also consider that the group of employees proposed to be covered by the agreement have been fairly chosen and that there are no circumstances that have been identified that would make it not reasonable to make the determination sought.

1. I am satisfied on the basis of the list of employees provided by the Employer that there are 44 employees who will be covered by the proposed enterprise agreement. I am further satisfied that as a result of the petition by the Applicant, 23 of those employees want to bargain.

Conclusion

1. I must make a majority support determination based on the satisfaction of the criteria in s.237(2) of the Act. A determination will be issued with this Decision.[1]

DEPUTY PRESIDENT

[1] PR764003

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