1
Fair Work Act 2009
s.604 - Appeal of decisions
Retail and Fast Food Workers Union Incorporated
v
Coles Supermarkets Australia Pty Ltd t/a Coles Supermarkets
(C2021/3466)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT CROSS
COMMISSIONER SPENCER
SYDNEY, 23 JULY 2021
Appeal against decision [2021] FWC 3068 of Deputy President Mansini at Melbourne on 28
May 2021 in matter number B2020/873.
Introduction
[1] This decision reproduces in edited form the decision and reasons which were stated on
transcript at the conclusion of the hearing conducted in relation to this matter on 23 July 2021.
[2] The Retail and Fast Food Workers Union Incorporated (RFFWUI) has lodged an
appeal, for which permission to appeal is required, against a decision made by Deputy
President Mansini on 28 May 2021.1 The decision concerned the RFFWUI’s application
under s 236 of the Fair Work Act 2009 (FW Act) for a majority support determination in
respect of a proposed enterprise agreement to cover all store-based employees of Coles
Supermarkets Australia Pty Ltd (Coles) except for store managers and meatworkers (store
workers). The Deputy President dismissed the application on the basis that she was not
satisfied under s 237(2)(a) of the FW Act that a majority of the employees of Coles who
would be covered by the proposed agreement wanted to bargain. The RFFWUI contends in its
notice of appeal that the Deputy President erred in a number of respects in dismissing its
application.
[3] The background facts are largely non-controversial. Coles employs approximately
103,600 store workers. They are currently covered by the Coles Supermarkets Agreement
2017,2 which has passed its nominal expiry date. Coles has not agreed to bargain for the
agreement proposed by the RFFWUI. Persons acting on behalf of the RFFWUI have, in the
period from July to November 2020, circulated a petition for store workers to sign to indicate
1 [2021] FWC 3068
2 AE428094
[2021] FWCFB 4414
DECISION
E AUSTRALIA FairWork Commission
[2021] FWCFB 4414
2
that they wanted to bargain with Coles for a new agreement. It is said that approximately
2,100 store workers signed the petition, although only a little more than 500 names and
signatures on a physical petition were actually placed before the Commission, and the large
majority of names on a further “electronic petition” were blacked out. It is accepted that, due
to an annual employee turnover rate of about 15%, a proportion of those who signed the
petition were likely to have left the employment of Coles by the time of the hearing before the
Deputy President. The RFFWUI filed its application on 29 December 2020. In its application,
the RFFWUI contended, among other things, that:
more than 99% “of those petitioned” had responded “yes” to the petition or completed
a hard copy petition in favour of bargaining;
this was “clearly indicative of a majority of employees” wanting to bargain;
the Commission should conduct an “electronic ballot” of the Coles store workers to
determine if they wanted to bargain for a new enterprise agreement; and
once the ballot result was returned, the matter should be relisted for determination.
[4] Section 237(1) of the FW Act provides that the Commission must make a majority
support determination if, first, an application for the determination has been made and,
second, if the Commission is satisfied as to the matters set out in s 237(2). As to the first
requirement, there was no dispute that the RFFWUI’s application was competent in the sense
that it was accepted by Coles that the RFFWUI was the bargaining representative of at least
one Coles store worker. Section 237(2) provides that the Commission must be satisfied that:
(a) a majority of employees of the employer who would be covered by the agreement want to
bargain; (b) the relevant employer has not yet agreed to bargain or initiated bargaining; (c) the
group of employees who would be covered by the agreement was fairly chosen; and (d) it is
reasonable in all the circumstances to make the determination. Section 237(3) provides that,
for the purpose of s 237(2)(a), the Commission “may work out whether a majority
of employees want to bargain using any method the FWC considers appropriate”. In the
proceedings below, Coles contended that the Commission could not be satisfied as to the
matter in s 237(2)(a), and also contested the proposed coverage of the agreement.
[5] In her decision, the Deputy President found that the petitions obtained by the RFFWUI
did not establish majority support for bargaining for the proposed agreement and, even if they
were accepted as sufficiently robust, they demonstrated nothing more than that a small sample
size of a significantly larger group of employees had indicated that they wanted to bargain.3
The Deputy President also said that the RFFWUI could not persuasively argue that its view
was representative on account of the small scale of its membership, which was an even
smaller proportion of those petitioned, and the fact that employees covered by the current
agreement were represented in the negotiation for that agreement by four other employee
organisations that were entitled to represent their industrial interests and whose views were
not before the Commission.4 The Deputy President concluded that the RFFWUI had not
established even a prima facie case that the majority of Coles store workers wanted to
bargain,5 that the circumstances of the COVID-19 pandemic did not change her conclusion in
3 Ibid at [14]
4 Ibid at [15]
5 Ibid at [16]
[2021] FWCFB 4414
3
this regard,6 and that the particular circumstances of the case did not justify the Commission’s
intervention to order a ballot to establish whether the RFFWUI could meet the s 237(2)(a)
requirement.7 The Deputy President stated her overall conclusion as follows:
“[19] For the above reasons, as I am not satisfied that the Commission should order a
ballot to test whether or not a majority of employees who will be covered by the
proposed agreement want to bargain, and am not satisfied that a majority of the
employees who will be covered by the proposed agreement want to bargain, the
requirement at s.237(2)(a) is not made out. It is therefore unnecessary to consider the
other criteria at s.237 and the application is dismissed.”
Appeal grounds and submissions
[6] The RFFWUI’s appeal is brought on two grounds. The first is that the Deputy
President erred by applying the wrong test and/or by constructively failing to exercise
jurisdiction. The RFFWUI submits in this connection that s 237(2)(a), read with s 237(3),
requires the Commission to undertake the task of determining whether a majority of
employees want to bargain, and cites the Federal Court Full Court decision in ResMed
Limited v Australian Manufacturing Workers’ Union8 (ResMed) as standing for this
proposition. It further submits that this task involves the Commission testing whether the
desire of the applicant bargaining representative to commence negotiations for a proposed
enterprise agreement is supported by the majority of employees to be covered by that
agreement, and that the Deputy President failed to undertake that task and failed to use any
method at all pursuant to s 237(3).
[7] The second appeal ground is that the Deputy President placed an onus on the RFFWUI
to establish that there was majority support, or at least establish a prima facie case that there
was majority support, when under s 237 the RFFWUI was obliged to do neither of these
things. The RFFWUI submits that it was entitled to do nothing more than ask the Commission
to determine whether there was a majority and to conduct a ballot for that purpose, and it was
not required to present material to justify the making of a majority support determination or
the conduct of a ballot. Alternatively, if the RFFWUI was required to establish a prima facie
case or a “reasonable hypothesis” that a majority wished to bargain, it submits that it had done
so, in that it demonstrated that more than 2,100 employees had indicated that they wished to
bargain, that less than one percent who completed the survey said they did not wish to
bargain, and the sample size was “statistically valid”.
[8] The RFFWUI submits that permission to appeal should be granted because:
the decision is contrary to established precedent, including the ResMed decision;
the appeal raises significant questions concerning the right of employees through their
bargaining representatives to access the process prescribed by ss 236 and 237 of the
FW Act and (potentially) to bargain with their employer;
6 Ibid at [17]
7 Ibid at [18]
8 [2015] FCAFC 195, 243 FCR 386, 256 IR 355 at [10]
[2021] FWCFB 4414
4
the appeal will directly affect the industrial interests or more than 100,000 employees;
and
there is an inherent public interest in decision-makers acting according to law and, if
the errors are made out, that public interest is a sufficient reason to grant permission to
correct them.
[9] The RFFWUI submits that the decision should be set aside, that a ballot of Coles store
workers should be ordered to determine whether a majority of them wish to bargain, and to
otherwise remit the matter to the Deputy President for hearing and determination according to
law.
Consideration
[10] Having considered these submissions, we are not satisfied that the grant of permission
to appeal would be in the public interest or that discretionary considerations favour the grant
of permission, for the following reasons.
[11] First, the appeal does not challenge the Deputy President’s conclusion that, on the
material before her, she could not be satisfied that a majority of Coles store workers want to
bargain for the proposed agreement, as required by s 237(2)(a). This is consistent with the fact
that the RFFWUI never positively contended before the Deputy President that a majority of
Coles store workers wanted to bargain and accepted, at least implicitly, that its petition was
not demonstrative of the existence of such a majority. Its case rose no higher than the
proposition that its application “bears out a reasonable foundation for the reasonable
hypothesis… that there is a majority support for bargaining” and therefore that a ballot
should be ordered to test that hypothesis. On this analysis therefore, the appeal is in substance
concerned only with the Deputy President’s refusal to order the ballot sought.
[12] The power to order a ballot of this nature in respect of a majority support
determination is clearly discretionary in nature. The source of the power is to be found in s
237(3), to which we have earlier referred, in combination with s 590(1), which relevantly
provides that the Commission “may… inform itself in relation to any matter before it in such
manner as it considers appropriate”. Both provisions confer a very broad discretion on the
Commission. The appeal against the Deputy President’s refusal to order a ballot is, therefore,
one against a discretionary decision of an interlocutory character. This presents a high hurdle
for an applicant for permission to appeal.
[13] The Deputy President exercised her discretion to decline to order a ballot on the basis
that the RFFWUI had not established even a prima facie case to justify the conduct of such a
ballot. That was an evaluative judgment that was reasonably open to be made given the
obvious disproportionality between the number of persons who signed, or purportedly signed,
the petition and the total number of Coles store workers. Neither of the RFFWUI’s grounds of
appeal allege that the Deputy President made any error of a House v The King9 nature in
respect of her exercise of the discretion. The RFFWUI asserted in its submissions, in a
manner detached from its grounds of appeal, that it had demonstrated a prima facie case or a
reasonable hypothesis that a majority wished to bargain, but this proposition finds no support
9 [1936] HCA 40, 55 CLR 499
[2021] FWCFB 4414
5
in the evidence. There is no evidence as to the manner in which the petition process was
carried out. The proposition that the “sample size” is “statistically valid” was not raised at
first instance, and there is no evidence that the number of signatories represents any attempt at
sampling the total workforce at all let alone that it was selected on a random or representative
basis. The further proposition that only one percent of “the employees who completed the
survey” said they did not wish to bargain is simply an unsupported assertion since, on its face,
the hard-copy petition at least only contains the names and signatures of those who said they
wished to bargain, and there is no evidence about what is purported to be shown by the
electronic petition. To all appearances, the so-called “sample” was self-selecting in nature,
and the best inference is that the number of signatories represents the maximum number
which the RFFWUI could obtain over five months of effort. In short, there is no arguable
basis to consider that the Deputy President erred in making the interlocutory discretionary
decision not to order the ballot sought by the RFFWUI.
[14] Second, there is no merit to the proposition advanced in connection with the first
appeal ground that s 237(2)(a), read with s 237(3), requires the Commission to take steps to
determine for itself whether or not a majority of relevant employees want to bargain. The task
of the Commission in respect of a majority support determination application is set out in
plain terms in s 237(2): the Commission must determine whether it is satisfied as to the four
matters specified, including that a majority of relevant employees want to bargain. If this state
of satisfaction is reached, section 237(1) requires a majority support determination to be
made. There is nothing in section 237 which requires the Commission to take any particular
step in order to determine whether it has reached the requisite state of satisfaction. Section
237(3), as already stated, is plainly cast in discretionary terms, and it would do violence to the
language of the provision to read it as requiring the Commission to take some positive step
itself to “work out whether a majority of employees want to bargain”.
[15] The discretionary character of s 237(3), as well as s 590(1), means that it will usually
be open to a Commission member to determine whether they are satisfied in relation to s
237(2)(a) on the basis of the evidence and submissions put by the parties before the
Commission. There may be a range of circumstances which might justify the exercise of the
discretion in s 237(3) to order a ballot or some other means to assess the existence of majority
support, including whether the applicant has advanced a “reasonable hypothesis” supported
by evidence that majority support exists,10 but no authority supports the conclusion that the s
237(3) is to be construed as compelling the Commission to exercise power under the
provision merely because an applicant requests that it do so. The Full Court decision in
ResMed, which affirmed the construction of s 237 stated by the Court (Perry J) at first
instance,11 does not stand as authority for any proposition of the nature contended for by the
RFFWUI. It is perhaps unnecessary to add that the proposition that any individual store
worker employed by Coles and acting as their own bargaining representative could, simply by
filing an application under s 236, compel a ballot of over 100,000 employees to be undertaken
is an unattractive one unlikely to be consonant with the purpose of the statutory scheme.
[16] Third, we do not consider it is reasonably arguable that in her decision the Deputy
President erred by “by placing an onus” on the RFFWUI, as it contends in its second appeal
10 See Inpex Australia Pty Ltd v AWU [2020] FWCFB 5321, 201 IR 424 at [11]
11 [2015] FCA 360, 243 FCR 332
[2021] FWCFB 4414
6
ground. On any fair reading of the decision, the Deputy President simply found that, on the
basis of all the material before her, she did not reach the state of satisfaction required under s
237(2)(a). No notion of “onus” was involved in reaching that conclusion beyond the well-
established proposition that, where the FW Act requires satisfaction as to a specified matter in
order for a particular power to be exercised, the party invoking the Commission’s jurisdiction
will bear the risk of failure if the material before the Commission is inadequate to permit the
requisite state of satisfaction to be reached.12 As earlier stated, it is not contended by the
RFFWUI on appeal that the material before the Deputy President was sufficient for her to be
satisfied under s 237(2)(a).
[17] Fourth, in the absence of any credible evidence that a majority of Coles store workers
supported bargaining for an agreement as proposed by the RFFWUI, it cannot be said that the
refusal of permission to appeal could result in any injustice by way of the denial of the
vindication of any right under s 237. Additionally, the decision does not foreclose the capacity
of the RFFWUI to make a further application under s 236, supported by a more substantial
evidentiary case, at any time in the future.
Conclusion
[18] For the above reasons, permission to appeal is refused.
VICE PRESIDENT
Appearances:
S Kelly of counsel for the appellant.
R Dalton QC with A Pollock of counsel for the respondent.
Hearing details:
2021.
By video-link (Sydney and Brisbane).
23 July.
12 Teterin v Resource Pacific Pty Limited [2014] FWCFB 4125, 244 IR 252 at [23]-[30]; Jain v Infosys Ltd [2014] FWCFB
5595 at [34]-[37]
OF THE FAIR WORK MISSION THE
[2021] FWCFB 4414
7
Printed by authority of the Commonwealth Government Printer
PR732036
