Transport Workers’ Union of Australia

[2020] FWC 5880

[2020] FWC 5880

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Transport Workers’ Union of Australia
(B2020/659)

DEPUTY PRESIDENT BINET PERTH, 5 NOVEMBER 2020

Application for a majority support determination – Granted.

[1] On 22 October 2020 the Transport Workers’ Union of Australia (TWU) made an application (Application) pursuant to section 236 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (FWC) to make a majority support determination (Determination).

[2] The Application sought to compel Specialist Diagnostic Services Pty Ltd trading as Western Diagnostic Pathology; Vetpath Laboratory Services (Western Diagnostic) to commence bargaining for a new enterprise agreement (Proposed Agreement) to cover employees of Western Diagnostic employed as courier drivers who are presently covered by the Western Diagnostic Pathology Couriers’ Enterprise Agreement 2017 (Agreement).

[3] On Tuesday 3 November 2020, Western Diagnostics advised Chambers that they consented to the FWC making the majority support determination sought by the TWU.

Key Statutory Provisions

[4] Section 236 of the FW Act provides that:

“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.”

[5] Section 237 of the FW Act provides that:

“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.”

Consideration

[6] The making of a majority support determination confirms that the majority of the employees to be covered by a proposed agreement want to bargain with the employer towards such an agreement. The effect of a majority support determination is to require the commencement of the agreement bargaining process, but it neither requires that an agreement be reached, nor dictates the terms of any such agreement. 1

[7] The TWU have applied for the Determination. An organisation of employees can apply for a majority support determination provided it is a bargaining representative for at least one employee who would be covered by the proposed agreement. 2 It is not contested, and I am satisfied, that the TWU have standing to make the Application.

[8] The Application identifies the employer to be covered by the Proposed Agreement as Western Diagnostics. The Application identifies the employees to be covered by the Proposed Agreement as employees of Western Diagnostics who are engaged by Western Diagnostics as courier drivers and who are presently covered by the Agreement (Employee Group).

Has Western Diagnostics agreed to bargain?

[9] The Application identifies the employer to be covered by the Proposed Agreement as Western Diagnostics. The FWC must be satisfied that the employer has not yet agreed to bargain or initiated bargaining for the proposed agreement. 3 On 22 October 2020 a representative from the TWU wrote to Western Diagnostics advising that employees wished to commence bargaining and requesting a notice of employee representational rights.4 Further correspondence sent by the TWU and Western Diagnostics indicated Western Diagnostics would not be ready for bargaining until the end of October 2020, at the earliest. The TWU is concerned bargaining would not occur in October 2020, and it did not. I am therefore satisfied that Western Diagnostics has not initiated bargaining and has given no firm commitment to bargain in the future.

Is the group of Employees fairly chosen?

[10] The FWC must be satisfied that the group of employees to be covered by the proposed agreement was fairly chosen. If the agreement will not cover all employees of the employer the FWC must take into account whether the group covered is geographically, operationally and/or organisationally distinct from other employees of employer. Having determined whether the group is geographically, operationally and/or organisationally distinct the FWC must take that into account and give it due weight having regard to all the other factors. 5

[11] The TWU submits that the Employee Group are operationally distinct from other employees of Western Diagnostics. Western Diagnostics have not disputed this. The Employee Group is the only employees currently covered by the Agreement.

[12] Having reviewed the submissions I am satisfied that the Employee Group is operationally distinct.

[13] While the question of whether the group of employees to be covered by the Proposed Agreement is geographically, operationally and/or organisationally distinct must be evaluated and given due weight, it is not a determinative consideration. It is not necessary to make a finding that the group is geographically, operationally and/or organisationally distinct in order to be satisfied that a group of employees was fairly chosen. 6

[14] The word ‘fairly’ implies that the selection of the group is not arbitrary or discriminatory and is made on some objective basis. 7 In this regard it is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreements coverage and employees who are excluded.8 Selection criteria based on employee characteristics such as gender would be unlikely to be fair. Selection criteria which would have the effect of undermining collective bargaining or other legislative objectives is also unlikely to be fair.9

[15] I am not satisfied that the selection of the Employee Group is fairly characterised as either arbitrary or discriminatory.

[16] Taking into account the geographic, organisational and operational distinctions and giving those due weight having regard to all the other factors raised by the parties I am satisfied that the Employee Group was fairly chosen.

Do a majority of Employees who will be covered by the Agreement want to bargain?

[17] The FWC may determine whether a majority of employees want to bargain using any method the FWC considers appropriate. The evidence to support such a finding may include employee petitions or surveys, secret ballots or written statements from employees. 10

[18] In its Application, the TWU say that it presented petitions to the Employee Group which a majority of the Employee Group signed, confirming that they wish to bargain with Western Diagnostics for a new agreement (Petitions).

[19] I am satisfied that reviewing the Petitions is an appropriate way to determine whether the majority of Employees wish to bargain. Western Diagnostics have not filed any submissions or any evidence to suggest that the Petitions do not accurately reflect the views of the majority of the Employee Group.

[20] Having reviewed the Petitions I am satisfied that a majority of the Employee Group want to bargain.

Is it reasonable in the circumstances to make the Determination?

[21] The FWC must be satisfied that making a majority support determination is reasonable in all the circumstances. 11 Section 237 of the FW Act gives the FWC broad discretion to determine whether majority support exists in the workforce in deciding whether to make a determination.

[22] Making a determination does not itself require the employer to bargain nor does it determine the scope of bargaining or coverage of the proposed agreement. It triggers the notice time within the meaning of section 173(2) of the FW Act. This marks the commencement of the bargaining process and the requirement of the parties to comply with the good faith bargaining obligations set out in section 228 of the FW Act.

[23] I am satisfied that in all the circumstances of this Application that it is reasonable to make the Determination.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR724218>

 1   [2009] FWAFB 668 at [25]

 2   ResMed Ltd v Australian Manufacturing Workers’ Union [2015] FCA 360

 3   Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd (2009) 191 IR 124

 4   Form F30 Attachments

 5   Construction, Forestry, Mining and Energy Union v Alcoa of Australia Ltd[2014] FWC 7123 citing Cimeco Pty Ltd v CFMEU [2012] 219 IR 139, Cotton on Group Services Pty Ltd v National Union of Workers[2014] FWCFB 8899,

 6   Cimeco Pty Ltd v CFMEU [2012] 219 IR 139 at [20], Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union[2017] FWCFB 5826 at [26]

 7   Cimeco at [21], Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union[2017] FWCFB 5826 at [26]

 8   Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union[2017] FWCFB 5826 at [26]

 9   [2014] FWC 7123 citing Cimeco at [21]

 10   Automotive, Food, Metals, Engineering Printing and Kindred Industries Union v Veolia Water Operations Pty Ltd[2015] FWC 2561

 11   Construction, Forestry, Mining and Energy Union v CBI Constructors Pty Ltd[2010] FWA 2164