1
Fair Work Act
2009
s.236—Majority support determination
Retail and Fast Food Workers Union Incorporated
(B2020/873)
DEPUTY PRESIDENT MANSINI MELBOURNE, 28 MAY 2021
Majority support determination.
[1] This decision concerns an application by the Retail and Fast Food Workers Union
(RAFFWU) under s.236 of the Fair Work Act 2009 (Act) for a majority support
determination.
[2] The proposed enterprise agreement that RAFFWU contends for would:
a) cover all store-based employees of Coles Supermarkets Australia Pty Ltd
(Coles) (presently covered by the Coles Supermarkets Agreement 2017 (2017
Agreement) and all salaried employees) (Relevant Employees); and
b) not cover the Store Manager and employees covered by the Coles
Supermarkets Meat Enterprise Agreement 2018,
(RAFFWU’s Proposed Agreement).
[3] There are around 103,600 employees that would be covered by RAFFWU’s Proposed
Agreement.1 RAFFWU has produced petitions, taken over the period July to November 2020,
which it says demonstrate that over 2,100 employees want to bargain. RAFFWU contends
there are 291 written instruments appointing it as bargaining representative and claims that
more than 1,000 of the Relevant Employees are its members.2
[4] Coles has not agreed to bargain and opposes the application.
[5] In essence, the question before the Commission is whether to order a ballot of the
employees covered by RAFFWU’s Proposed Agreement so that RAFFWU may establish
whether or not a valid majority wants to bargain with Coles.
1 That precise figure is an assessment made by Coles, as at the time this application was made see Coles Outline of Response
to the Application at paragraph 2.7.
2 As of 8 February 2021, see RAFFWU’s Submissions in Reply filed 3 March 2021 at paragraphs 2 and 5.
[2021] FWC 3068 [Note: An appeal pursuant to s.604 (C2021/3466) was
lodged against this decision - refer to Full Bench decision dated
23 July 2021 [[2021] FWCFB 4414] for the result of the appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb4414.htm
[2021] FWC 3068
2
Statutory framework
[6] 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 the Commission is satisfied of the matters in s.237(2):
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.
[7] In relation to s.237(2)(a), the Commission may work out whether a majority of
employees wants to bargain using any method it considers appropriate (s.237(3)). The
Explanatory Memorandum to the Fair Work Bill 2008 (Cth) contemplates that such methods
might include a secret ballot, survey, written statements or a petition.3
[8] In respect of s.237(2)(c), 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
[9] The application is made by RAFFWU in its capacity as a bargaining representative
within the meaning of s.176(1)(c) and Coles did not challenge its standing in this respect.
[10] In relation to s.237(2)(a), the Commission must consider whether a majority of the
Relevant Employees employed by Coles at a particular time, and who will be covered by the
proposed agreement, want to bargain.
[11] As to the method that should be used to establish whether a majority of employees
wants to bargain, RAFFWU submitted that the Commission should order an electronic ballot
of the Relevant Employees to be commissioned on a future date at RAFFWU’s cost. It said
this is a method the Commission has previously accepted as suitable and is an appropriate
method to: avoid logistical challenges related to the COVID-19 pandemic; and to enable the
process to be undertaken quickly and with certainty as to the identity of participating
employees. Further, that the Commission should be persuaded to inform itself by such method
3 At paragraph 979.
[2021] FWC 3068
3
having regard to the results of 19 written petitions taken by employees and an online petition
by RAFFWU, together conducted over the period July to November 2020, which it said is
indicative that a majority want to bargain. RAFFWU summarises the petition results as: more
than 99% of those petitioned (over 2,100 Relevant Employees) want to bargain for
RAFFWU’s Proposed Agreement and less than 1% (fewer than 20 relevant employees) do
not. It says the petition results underscore a “reasonable hypothesis” that majority support for
bargaining exists. It pointed to the objects of the Act, the objects of Part 2-4 and International
Labour Organization Convention 98 in support of its request that the Commission order an
electronic ballot in order that RAFFWU may establish the jurisdictional requirement at
s.237(2)(a).
[12] Coles did not challenge the voracity of RAFFWU’s petitions, but urged the
Commission to dismiss the application for reasons outlined in its submissions which are not
repeated here.
[13] It is well established that the Commission has a broad discretion to work out whether a
majority of employees want to bargain using any method the Commission considers
appropriate. Each case turns on its own particular facts. Although an applicant for a majority
support determination is not required to provide evidence that there is a majority support for
the bargaining process to commence, that is the orthodox approach in persuading the
Commission to reach the necessary satisfaction, as an analysis of the authorities reflects. In
any event, the legislation does not require the Commission to go about this task. As a Full
Bench considered:
There is force in the proposition that an application under s 236 is for a determination
that majority support exists, not a speculative investigation into whether it exists.4
[14] The petitions obtained by RAFFWU do not establish majority support for bargaining
for RAFFWU’s Proposed Agreement. Even if the petitions were accepted as sufficiently
robust (about which there is some doubt), the petitions demonstrate nothing more than that a
small sample size of a significantly larger group of employees that would be covered by
RAFFWU’s Proposed Agreement have indicated that they want to bargain. With an accepted
employee turnover of around 15% per annum5 the composition of Relevant Employees and
those who returned the petitions will have changed: since the application was made; over the
5 month period in which the petitions were gathered; and since those times. But even making
some allowance for this, on RAFFWU’s best case the petitions fall well short.
[15] Further, this is not a case where RAFFWU can persuasively argue that its view is
representative on account of the scaled of its membership, being an even smaller proportion of
the Relevant Employees than those petitioned as in support.6 It is not a barrier to succeeding
in the application that RAFFWU does not represent all of the Relevant Employees and/or that
the Relevant Employees may be represented by other bargaining representatives. It is an
objective fact that the 100,000-plus employees covered by RAFFWU’s Proposed Agreement
include employees covered by the 2017 Agreement who were represented in that negotiation
4 INPEX Australia Pty Ltd v The Australian Workers’ Union [2020] FWCFB 5321 at [11].
5 RAFFWU’s Submissions filed 3 February 2021 at paragraph 30h.
6 In contrast to the scenario posited in ResMed Limited v Australian Manufacturing Workers’ Union [2015] FCA 360 at [58]
(ResMed) (upheld on appeal in ResMed Limited v Australian Manufacturing Workers’ Union [2015] FCAFC 195 at [10]).
[2021] FWC 3068
4
by 4 employee organisations that are entitled to represent their industrial interests.7 There is
nothing before the Commission to indicate how many of the Relevant Employees those
organisations represent and whether those organisations want to bargain for RAFFWU’s
Proposed Agreement or otherwise. Such evidence might be compelling but, in its absence, I
consider this a neutral factor with regard to the consideration of whether to order an electronic
ballot.
[16] The simple fact is that RAFFWU has not established even a prima facie case that there
is a majority of Relevant Employees that want to bargain for RAFFWU’s Proposed
Agreement as to justify making an order that a ballot be conducted.
[17] For completeness, RAFFWU’s submissions about the impact of the global pandemic
(COVID-19) were understood to go to the appropriate method of a ballot if the Commission
were so persuaded. Nonetheless, given the time taken to prepare the petitions and the
combined in-person and online methods utilised, I see no basis to alter my conclusion on this
account.
[18] I acknowledge the plight of RAFFWU in that Coles is a large employer, with a large
number of locations at which the Relevant Employees are based, and that its members have
gone to some effort to gather petitions for the purposes of this application in circumstances
where Coles refuses to bargain with RAFFWU. Indeed the purpose of s.236 is to create a
mechanism whereby an unwilling employer might be brought to the bargaining table and
subjected to a requirement to bargain in good faith.8 However those obligations only arise
should the Commission be satisfied that a majority of employees covered by the proposed
agreement wish to bargain and the other criteria in s.237 are met. In my view and without
more, the particular circumstances of this case do not justify the Commission’s intervention
by ordering a ballot as to establish whether or not RAFFWU can meet the requirement at
s.237(2)(a).
Conclusion
[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.
DEPUTY PRESIDENT
Appearances:
7 Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty. Limited [2018] FWCA 2283 at [82].
8 ResMed at 15 citing JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at 28.
WORKC FAIR WORKS F COMMISSION AUSTRALIA THE SEA
[2021] FWC 3068
5
Mr J Cullinan of the Applicant
Mr N Barkarsas for Coles Supermarkets Australia.
Printed by authority of the Commonwealth Government Printer]
PR730244
