Union of Christmas Island Workers

[2023] FWC 2117

[2023] FWC 2117

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236 - Application for a majority support determination

Union of Christmas Island Workers

(B2023/841)

DEPUTY PRESIDENT O'KEEFFE PERTH, 23 AUGUST 2023

Application for a majority support determination – application granted.

1. On 14 August 2023 the Union of Christmas Island Workers (the Applicant) applied for a majority support determination under s 236(1) of the Fair Work Act 2009 (Cth) (FW Act).

1. The Applicant contends that a majority of relevant employees who would be covered by a proposed enterprise agreement want to bargain with their employer, Iconic Property Services Pty Ltd (the Respondent).  Accompanying the application was a petition signed by three of the Applicant’s members who are employed by the Respondent to deliver cleaning services at the Christmas Island District High School.

1. On 16 August 2023 I wrote to the Respondent requesting:

(a)confirmation that the three members of the Applicant who had signed the petition were employees of the Respondent; and

(b)confirmation of the total number of employees employed by the Respondent in cleaning services at the Christmas Island District High School; and

(c)an indication as to whether the Respondent wished to be heard in the matter.

1. On 21 August 2023 I received a reply from the Respondent’s representative Mr Mark Diamond of Workplace Advisory Group advising that the Respondent did not oppose the making of a majority support determination.  On that day I wrote to Mr Diamond seeking a response to issues (a) and (b) above.

1. On 22 August 2023 Mr Diamond replied advising that the Respondent employed five employees at the Christmas Island District High School and conceding that three of these five wanted the Applicant to bargain with the Respondent.

Statutory Framework

1. Section 237 of the Act provides that the Commission must make a majority support determination in relation to a proposed single enterprise agreement if an application has been made under s 236, and where the Commission is satisfied of the matters in s 237(2). That section provides:

“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.

…”

1. In relation to s 237(2)(a), the Commission may determine whether a majority of employees want to bargain by using any method it considers appropriate (see s 237(3)).

1. If the proposed agreement will not cover all of the employees of the employer or employers covered by the agreement, the Commission must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is ‘geographically, operationally or organisationally distinct’ (s 237(3A)).

Consideration

1. The Applicant is a bargaining representative of the employees in question and is entitled under its registered rules to represent the industrial interests of those employees. The application specifies the employer and employees who will be covered by the agreement. A valid application has been made under s 236.

1. The first matter prescribed by s 237 is whether the Commission is satisfied that a majority of the relevant employees who are employed by the employer at a time determined by the Commission want to bargain (s 237(2)(a)).

1. The Respondent advises that it employs five employees at the Christmas Island District High School and concedes, consistent with the information provided by the Applicant, that three of those employees wish to bargain.  I am therefore satisfied that a majority of the employees who are employed by the Respondent as at 14 August 2023 and who would be covered by a proposed agreement wish to bargain.

1. As to the other requirements of s 237(2), there was no dispute that the Respondent has not yet agreed to bargain or initiated bargaining. This was confirmed at an earlier conference between the parties conducted before me.  As such, the requirement in s 237(2)(b) has been met. I consider that the group of employees who will be covered by the proposed agreement was fairly chosen, as required by s 237(2)(c). In this regard, I have taken into account that the group is clearly geographically distinct. Finally, I am satisfied that it is reasonable in all the circumstances to make the determination (s 237(2)(d)) given that the statutory requirements have been met and no other relevant issue arises.

Conclusion

1. As I am satisfied of the matters set out in s 237, I am required by s 237(1) to make a majority support determination. The determination is issued separately in  PR765503.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR765502>