1
Fair Work Act 2009
s.236 - Application for a majority support determination
Australian Licenced Aircraft Engineers Association, The
(B2013/929)
VICE PRESIDENT WATSON SYDNEY, 2 JULY 2013
Application for a majority support determination - whether majority support - declarations in
support of bargaining - Fair Work Act 2009 - ss. 236, 237.
Introduction
[1] This decision concerns an application for a majority support determination by the
Australian Licensed Aircraft Engineers Association (ALAEA) made pursuant to s.236 of the
Fair Work Act 2009 (the Act). The application relates to employees who are eligible to be
members of the ALAEA and employed by Panasonic Avionics Corporation (Panasonic) as
Licenced Aircraft Maintenance Engineers. Panasonic refers to these employees as
Maintenance Service Representatives or ‘MSRs’.
[2] The matter was listed for hearing on 13 June. Mr L Amos appeared for the ALAEA
and Ms B Maynard, of counsel, appeared for Panasonic. The matter was adjourned until 28
June to allow the ALAEA to seek further instructions regarding the disclosure of declarations
of support or ‘pledge cards’ to Panasonic’s representative. On 28 June evidence was given by
Mr Leon Barnard, Regional Manager, Maintenance Operations for Panasonic.
Legislation
[3] Section 236 of the Act provides that a bargaining representative can apply for a
determination that a majority of the employees who will be covered by the agreement want to
bargain with the employer for a proposed single enterprise agreement. Section 237 sets out the
circumstances in which the Commission must make a majority support determination:
“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
[2013] FWC 4267
DECISION
AUSTR FairWork Commission
[2013] FWC 4267
2
(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.
[4] Section 237 establishes a four pronged test. The Commission must be satisfied of each
element. I will consider the requirements in turn.
Does a majority want to bargain?
[5] The primary issue in contention is whether a majority of the employees to be covered
by the proposed agreement want to bargain. A preliminary question arises as to the manner
for determining whether majority support exists.
[6] The ALAEA submits that the signed declarations of support are sufficient to determine
majority support. It submits that signed pledges have previously been accepted by the
Commission as an acceptable method for indicating support for bargaining. In Australian
Municipal, Administrative, Clerical and Services Union v Regent Taxis Limited T/A Gold
Coast Cabs1, Senior Deputy President Richards found:
“...I consider the wording of the pledge to be in plain terms, and most unlikely to create
any doubt in the mind of a reasonable person as to its intention (which was to show the
relevant employee wanted to bargain for an agreement).”2
[7] Panasonic submits that the wording of the pledge form provided by the ALAEA does
not clearly demonstrate that the relevant employee wants to bargain for an enterprise
[2013] FWC 4267
3
agreement. Panasonic sought to have a ballot conducted by the Australian Electoral
Commission to determine whether the majority of employees support bargaining.
[8] The declaration form provides for the appointment of the ALAEA as a bargaining
representative for the relevant employee, and contains the following statement:
“I understand that this form may be used to demonstrate to Fair Work Australia that I
want to bargain with my employer for a collective agreement...”
[9] I am concerned that a ballot conducted by the Australian Electoral Commission will
involve unnecessary cost and delay. In my view, the declaration in the form provided by the
ALAEA demonstrates support for bargaining. Obviously it is necessary to consider the
legitimacy of the pledges, whether they are signed by current employees and whether they
constitute a majority of the relevant class of employees.
[10] The employees concerned have not given permission for the pledges to be provided to
counsel for Panasonic because of a fear of a negative reaction from the employer. I do not
consider that this refusal is rational as Ms Maynard has given an undertaking not to disclose
the pledges to her client. With some reluctance, and in view of the delay that has already
occurred, I will examine the pledges, on this occasion, for the purposes of determining
whether a majority of MSRs who will be covered by the agreement want to bargain for a
proposed single enterprise agreement. I direct Panasonic to provide a list of its currently
employed MSRs. I direct the ALAEA to provide all signed pledges by current MSRs to my
chambers. I will determine whether this criterion is met after considering this documentation.
Has the employer agreed to bargain?
[11] It is common ground that the employer has not agreed to bargain. The employer
believes that the current arrangements are in the best interests of the business and a majority
of its employees do not want a change to an alternative arrangement.
Is the group of employees fairly chosen?
[12] Licensed engineers are often subject to separate representation and regulation to other
employees in the airline industry. I consider that an agreement covering MSRs only is not an
unfair selection of the class of employees to be covered by an agreement. Other combinations
of groups of Panasonic employees may also be a fairly chosen group.
Is it reasonable to make the determination?
[13] If all other criteria are satisfied I do not consider that there is any reason why a
determination should not be issued. The objects of the Act clearly encourage bargaining when
a majority of employees wish it to occur. It is not sufficient in my view for an employer to
oppose bargaining on the grounds that it considers it to be undesirable when a majority of its
employees want it to occur.
Conclusion
[2013] FWC 4267
4
[14] I will consider the outstanding question of majority support after examining the
documents I have directed be provided to the Commission and inform the parties of the
outcome.
VICE PRESIDENT WATSON
Appearances:
Mr L Amos for The Australian Licensed Aircraft Engineers Association
Ms B Maynard, of counsel, for Panasonic Avionics Corporation
Hearing details:
2013.
Sydney.
June
13, 28.
Printed by authority of the Commonwealth Government Printer
Price code A, PR538411
1 [2009] FWA 1642
2 [2009] FWA 1642 at [22]
COMMISSION AUSTRALIA THE SEAL OF FA
