Transport Workers' Union of Australia v Pearl Energy Pty Ltd

[2023] FWC 3465

[2023] FWC 3465

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Transport Workers’ Union of Australia
v

Pearl Energy Pty Ltd

(B2023/1265)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 22 DECEMBER 2023

Majority support determination – whether a majority of the employees want to bargain – application for majority support determination dismissed

1. The Transport Workers’ Union of Australia (TWU) has made an application to the Fair Work Commission (Commission) pursuant to s 236 of the Fair Work Act 2009 (Cth) (Act) for a majority support determination in relation to employees of Pearl Energy Pty Limited (Pearl Energy) who work from its depot located at 25 School Drive, Tomago, New South Wales (Tomago Site) and who are covered by the Road Transport Distribution Award 2020 (Road Transport Employees).

1. Pearl Energy opposes the making of the majority support determination on the basis that it does not believe that a majority of the Road Transport Employees want to bargain with Pearl Energy.

The role of a majority support determination

1. The role of a majority support determination is to commence the bargaining process when, among other things, there is majority support among employees to collectively bargain but their employer has not agreed to do so.[1]

1. The effect of a majority support determination extends no further than to enliven the bargaining process under the Act, including the obligation on bargaining representatives to meet the good faith bargaining requirements under s 228 of the Act.[2]

Do a majority of the Road Transport Employees want to bargain?

1. There are 10 Road Transport Employees.

1. The TWU initially sought to rely on a petition signed by 9 of the 10 Road Transport Employees.

1. Pearl Energy objected to the petition on the basis that it did not represent the true views of the Road Transport Employees. As a result of that objection, I decided, with the consent of the parties, that it would be appropriate to determine whether a majority of the Road Transport Employees want to bargain for an enterprise agreement with Peal Energy by attending the Tomago Site and asking the Road Transport Employees whether they wanted to bargain for an enterprise agreement. To that end, I attended Tomago Site with my Associate at 1:30pm on 20 December 2023. There were no representatives of Pearl Energy management or the TWU present at the meeting. I informed the Road Transport Employees that the TWU had applied for a majority support determination and gave them an explanation of what an enterprise agreement is. I then asked the Road Transport Employees to indicate:

(a)whether they want to bargain with Pearl Energy for an enterprise agreement; and

(b)whether they do not want to bargain with Pearl Energy for an enterprise agreement.

1. Five Road Transport Employees attended the lunch time meeting on 20 December 2023 in person. A further two Road Transport Employees participated in the lunch time meeting on 20 December 2023 by telephone. I have since spoken to two of the three remaining Road Transport Employees who were not able to attend the meeting on 20 December 2023.

1. Five Road Transport Employees have indicated to me that they do not wish to bargain for an enterprise agreement with Pearl Energy. Accordingly, we do not have a majority (at least 6 of 10) of the Road Transport Employees who want to bargain for an enterprise agreement with Pearl Energy (s 237(2)(a) of the Act).

Conclusion

1. Because I am not satisfied that a majority (at least 6 of 10) of the Road Transport Employees want to bargain for an enterprise agreement with Pearl Energy, I must dismiss the application for a majority support determination.

1. A new application for a majority support determination may be made in the future if a majority of Road Transport employees want to bargain with Pearl Energy for an enterprise agreement.

DEPUTY PRESIDENT

[1] LHMU v Coca-Cola Amatil (Aust) Pty Ltd[2009] FWAFB 668 at [28]

[2] Ibid

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