Transport Workers’ Union of Australia v Independent Living Specialists Pty Limited

[2024] FWC 946

[2024] FWC 946

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Transport Workers’ Union of Australia
v

Independent Living Specialists Pty Limited

(B2024/240)

COMMISSIONER MCKINNON SYDNEY, 15 APRIL 2024

Application for a majority support determination – whether majority support – whether fairly chosen – whether reasonable in circumstances – determination made

1. The Transport Workers’ Union of Australia (TWU) is seeking to bargain with Independent Living Specialists Pty Limited (Independent Living Specialists) for an enterprise agreement that will cover Independent Living Specialists and its employees based at the Eastern Creek Depot who are employed in a classification in, and covered by, the Road Transport and Distribution Award 2020 (the Award). Independent Living Specialists has not yet agreed to bargain or initiated bargaining for an enterprise agreement in relation to the employees. It did not seek to be heard in relation to the application.

1. I have decided to grant the application for a majority support determination on the papers. These are my reasons.

Is there a majority support for bargaining?

1. On 31 January 2024, the TWU emailed Independent Living Specialists and asked that it agree to commence negotiations for an enterprise agreement in relation to the employees.

1. On 23 February 2024, Independent Living Specialists advised the TWU that it did “not consent to commence bargaining” for an enterprise agreement.

1. On 20 March 2024, the TWU applied for a majority support determination under section 236 of the Fair Work Act 2009 (Cth) (the Act). The determination is sought in relation to:

“All employees engaged by Independent Living Specialists PTY Limited at the yard located at 51 Eastern Creek Drive, Eastern Creek, 2766, NSW, who are covered by a classification in the Road Transport Distribution Award 2020.”

1. Accompanying the application was an unredacted petition signed by employees at the Eastern Creek Depot. The question on the petition is this:

“1. We, the undersigned employees of Independent Living Specialist employed in Sydney as drivers want to collectively bargain with our employer for an enterprise agreement under the Fair Work Act.

2. We, the undersigned appoint the Transport Workers’ Union of Australia, New Souths [sic] Wales Branch as our Bargaining Agent for an enterprise agreement”.

1. According to the TWU’s application, employees who signed the petition were “drivers at the Eastern Creek Depot”.

1. On 26 March 2024, I directed Independent Living Specialists to file a list of all current employees who would be covered by the proposed agreement on a confidential basis. Independent Living Specialists complied with the direction and provided the relevant list of employees as at 2 April 2024. I compared the list with the names recorded on the TWU’s petition. Having done so, I am satisfied that a majority of relevant employees want to bargain with Independent Living Specialists for an enterprise agreement.

Was the group of employees fairly chosen?

1. The TWU submits that the group of employees to be covered by the proposed enterprise agreement is geographically distinct because all the employees are “exclusively engaged from the depot location of 51 Eastern Creek Drive, Eastern Creek, 2766, NSW”, which is where they commence and finish their shifts. The TWU also submits that the group of employees is operationally distinct by reference to their Award coverage and classification.

1. I am satisfied that the group of employees is operationally and geographically distinct and that it was fairly chosen.

Is it reasonable to make the determination?

1. The employees are Award-covered and each is employed on an individual contract of employment with varying terms and conditions of employment. A majority of the group wishes to bargain for an enterprise agreement. In the absence of agreement from Independent Living Specialists to do so, they are entitled to seek a majority support determination from the Commission. The application otherwise meets the requirements of the Act and absent any basis for concern about the reasonableness of making the determination, it is appropriate that I give effect to the underlying policy to which sections 236 and 237 are directed. For these reasons, I am satisfied that it is reasonable in all the circumstances to make the determination.

Conclusion

1. As I am satisfied that the conditions precedent to the making of a majority support determination have been met, the application must be granted. The determination will issue separately and will come into operation today.

COMMISSIONER

Hearing details:

Determined on the papers.

Printed by authority of the Commonwealth Government Printer

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