Transport Workers' Union of Australia v Cranbourne Transit Pty Ltd T/A Cranbourne Transit

[2019] FWC 3496

[2019] FWC 3496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Transport Workers’ Union of Australia
v
Cranbourne Transit Pty Ltd T/A Cranbourne Transit
(B2019/20)

COMMISSIONER GREGORY MELBOURNE, 21 MAY 2019

Cranbourne Transit Pty Ltd T/A Cranbourne Transit.

Introduction

[1] The Transport Workers’ Union of Australia (“the TWU”) has made application under s.236 of the Fair Work Act 2009 (Cth) (“the Act”) for a majority support determination. It is made in respect of those employees of Cranbourne Transit Pty Ltd T/A Cranbourne Transit (“Cranbourne Transit”) employed as Bus Drivers, Conductors, Ticket Sellers, School Bus Supervisors, Cleaners, Greasers and Bowser Attendants at its depot at Cranbourne in Victoria.

[2] The application seeks a majority support determination confirming that a majority of the employees want to bargain with their employer for a new enterprise agreement.

[3] The matter was initially dealt with in conference on 7 February 2019 and it was agreed as an outcome that the TWU would now provide the Commission with a petition of the employees it had collected in support of the view that a majority of the employees want to have it enter into negotiations on their behalf with Cranbourne Transit for the making of a new enterprise agreement. It was also agreed that Cranbourne Transit would provide the Commission with a list of its employees so that the Commission could compare the two documents and ascertain whether majority support for bargaining appeared to exist. The Commission would then provide advice to the parties about the outcome of that comparison.

[4] On 11 February the Commission sent an email to the parties indicating that it had reviewed the petition provided by the TWU and the list of employee names provided on behalf of Cranbourne Transit. It continued to indicate that it was “…not satisfied at this point, based on the material now before the Commission, that a majority of the employees who are employed by the employer want to bargain, as the petition does not confirm that majority support.”

[5] After a series of further exchanges between the parties another conference was held on 7 May 2019. The TWU indicated that it had now collected a petition with additional employee names and it now had a total of 90 employees who had signed the petition, which called on Cranbourne Transit to commence negotiations with the TWU for a new enterprise agreement. The Commission indicated in response that it was prepared to consider the content of that petition if it was provided to the Commission and it would then advise Cranbourne Transit of its view in response. The business would then have the opportunity of making submissions in response if it chose to do so.

[6] The petition subsequently provided to the Commission was headed “PETITION,” and continued to state:

“We the Undersigned, Employees of Cranbourne Transit Pty Ltd T/A Cranbourne Transit employed under the CRANBOURNE Transit PTY LTD ENTERPRISE AGREEMENT 2014 (AE409177) call on our Employer to commence negotiations with our Bargaining Representatives, the Transport Workers Union (Vic/Tas) for an Enterprise Agreement on our behalf.”

[7] On 10 May the Commission forwarded an email to Cranbourne Transit’s representative confirming that the petition had been received. The Commission continued to indicate:

“A review of the petition indicates that 91 employee names and addresses match the names that were contained on the employee list that you provided to the Commission on 8 February.

This would appear to indicate, prima facie, that it is appropriate for the Commission to now make the majority support determination sought by the Union.

However, I am obviously prepared to consider any further issues that your Member may wish to raise in regard to the application and will set the matter down for hearing at short notice if they wish to provide any further submissions or evidence.”

[8] On 14 May the Commission was advised by Cranbourne Transit’s representative that it was now “…satisfied that a majority of their workforce does wish to commence bargaining for a new enterprise agreement and have asked me to advise you that they do not oppose the making of orders for such a majority determination.”

Relevant legislation

[9] Section 236 of the Act sets out what must be contained in any application for a majority support determination. It states:

“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.” 1

[10] Section 237 deals with what the Commission must be satisfied about before a Determination is made. It states:

“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, taking 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.” 2

Conclusion

[11] The application in the present matter specifies the employer and the employees who are intended to be covered by the proposed enterprise agreement. I am also satisfied, based on a review of the petition of employees provided to the Commission on 7 May 2019 and a comparison of that document with a list of employee names provided by Cranbourne Transit, that a majority of the employees who are intended to be covered by the proposed enterprise agreement want to bargain with their employer. I am also satisfied that Cranbourne Transit has not yet agreed to bargain, or has not initiated bargaining for the agreement.

[12] I am also satisfied that the group of employees who will be covered by the proposed agreement are fairly chosen, being those employees who are employed as Bus Drivers, Conductors, Ticket Sellers, School Bus Supervisors, Cleaners, Greasers and Bowser Attendants at the Cranbourne depot of Cranbourne Transit. They are accordingly geographically, operationally and organisationally distinct.

[13] I am accordingly satisfied that it is reasonable in all the circumstances to make the determination sought. The determination is accordingly made and issued in conjunction with this decision. It will operate from the date of this decision.

COMMISSIONER

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 1   Fair Work Act 2009 (Cth) s 236.

 2   Fair Work Act 2009 (Cth) s 237.