Transport Workers' Union of Australia

[2018] FWC 1808

[2018] FWC 1808

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 236 - Application for a majority support determination

Transport Workers' Union of Australia
(B2017/565)

DEPUTY PRESIDENT SAMS SYDNEY, 27 MARCH 2018

Application for majority support determination – airline industry – ramp, baggage and catering services – opposition to application – conciliation conferences – exchange of employee lists – Commission satisfied majority of employees wish to bargain for a new agreement – determination made. .

BACKGROUND

[1] On 5 July 2017, the Transport Workers’ Union of Australia (the ‘Union’), filed an application seeking a majority support determination, pursuant to s 236 of the Fair Work Act 2009 (the ‘Act’), for a proposed enterprise agreement to cover Ground Staff employees of Regional Express Pty Ltd t/a Rex Airlines (‘Rex), who provide ramp, baggage and catering services in Sydney.

[2] On 10 July 2017, my Chambers emailed Rex seeking advice as to whether it opposed the determination being made. Rex’s opposition was confirmed and I convened a conference of the parties on 25 July 2017. Ms A Shannon, Solicitor, Clayton Utz represented Rex, with permission being granted for Rex to be legally represented, pursuant to s 596 of the Act, and Mr H Lau with Mr T Rogers represented the Union. At the conference, Rex submitted that the group of employees sought to be covered by the determination were not geographically or organisationally distinct and had not been fairly chosen. At the conclusion of that conference, the Union agreed to adjourn its application and seek further advice.

[3] In December 2017, the Union sought to reagitate its application and I listed the matter for further conference on 18 December 2017. Rex indicated that it would withdraw its opposition to the application, if the proposed agreement would cover its Ground Staff nationally, as distinct to relevant employees only in Sydney and that it was satisfied that a majority of relevant employees wished to commence bargaining. As the Union was unwilling to provide its petition of employees to Rex disclosing the names of employees who were in favour of bargaining, I directed the parties to confer with each other in respect to proposed timetabling of the matter in terms of hearing dates and directions for the filing and service of submissions and evidence.

[4] However, by 22 February 2018, the parties agreed to a process which involved the Union providing me, on a confidential basis, with a petition signed by Ground staff employed by Rex nationally, who agreed to commence bargaining for a national enterprise agreement. Rex would similarly provide me with a list of employees, who are currently employed by Rex, in Ground Staff classifications. The parties were content that I could then cross check the two lists and establish whether or not a majority of employees employed by Rex and who would be covered by an agreement, want to bargain (s 237(2)(a) of the Act).

[5] Both parties provided their respective lists to my Chambers. I have now conducted that cross check. I am satisfied that a clear majority of Ground Staff employees who are employed by Rex and who would be covered by the Agreement want to bargain. I notified Rex of this conclusion on 23 March 2018. Rex responded today (27 March 2018) advising that given I am satisfied there is a clear majority of employees in favour of bargaining with Regional Express, and the Union has confirmed that it is seeking to bargain for a national agreement, as distinct to a Sydney based agreement, as previously sought in its application, it does not oppose the Commission making the majority support determination as sought by the Union. I intend to do so on that basis.

CONSIDERATION

[6] The statutory provisions governing applications, made pursuant to s 236 of the Act are found at ss 236 and 237 of the Act, 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.”

“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.”

[7] I am satisfied that the Union is a bargaining representative for the employees concerned and that it is entitled to represent the industrial interests of the majority of employees who will be covered by the proposed agreement. The application is competently before the Commission in that it specifies the employer and the employees who will be covered by the proposed agreement.

[8] Having already established that s 237(2)(a) is satisfied, I must turn to the other statutory requirements under s 237 of the Act before deciding whether to make the determination. I find that Rex has not initiated bargaining for the proposed agreement (s 237(2)(b)); that the group of employees who will be covered by the agreement was fairly chosen (s 237(2)(c); and that it is reasonable in all the circumstances to make the determination (s 237(2)(d)). As I am satisfied that all of the statutory requirements relevant to the making of a majority support determination have been met, the Commission must make the determination (s 237(1)). The determination, to take effect this day, 27 March 2018, is issued contemporaneously with this decision.

DEPUTY PRESIDENT

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