Majority support determinations

See Fair Work Act 2009 ss.236–237

Where a majority of employees want to bargain with their employer to make an enterprise agreement and the employer has not yet agreed to bargain or initiated bargaining, a bargaining representative of the employees may apply to the Fair Work Commission for a majority support determination.

If the Commission makes a majority support determination, the employer is required to bargain. If the employer refuses to bargain, the employee bargaining representative may seek a bargaining order to require the employer to meet the good faith bargaining requirements.[1]

An application for a majority support determination can only be made in relation to a proposed single-enterprise agreement.[2]

An application for a majority support determination must be made by a bargaining representative of an employee who will be covered by the proposed agreement.

The application must specify the employer (or employers) and the employees who will be covered by the proposed agreement.

The Commission must make a majority support determination if an application has been made and it is satisfied that:

• a majority of the employees who are employed by the employer (or employers) at that time and who will be covered by the agreement want to bargain
• the employer (or employers) have not yet agreed to bargain, or initiated bargaining
• the group of employees who will be covered by the agreement was fairly chosen, and
• it is reasonable in all the circumstances to make the determination.

The Commission may work out whether a majority of employees want to bargain using any method the Commission considers appropriate. Methods might include a secret ballot, survey, written statements or a petition.[3]

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

A majority support determination comes into operation on the day on which it is made.

Related information

• Meaning of 'fairly chosen'
• Good faith bargaining requirements
• Bargaining orders
• Bargaining representatives

Majority support determination made

Australasian Meat Industry Employees Union v Somerville Retail Services

Australasian Meat Industry Employees Union v Somerville Retail Services [2012] FWA 7484 (Roe C, 30 August 2012).

The AMIEU made an application for a majority support determination in relation to employees who were employed to work in, or in connection with, the meat processing establishment of Somerville Retail Services Pty Ltd and who would be covered by the Meat Industry Award 2010.

At the initial hearing, the Commission accepted that Somerville had not initiated bargaining or agreed to bargain. The Commission was satisfied that the group of employees proposed by the AMIEU was fairly chosen.

The Commission advised the parties that the method the Commission considered appropriate to establish whether a majority of employees wanted to bargain was to compare the petitions provided by the AMIEU with the list of employees provided by Somerville. Two petitions were provided by the AMIEU.

The Commission did not take into account names on the petition that could not be matched with the employer's list. Regardless, the comparison established that at least 127 of the 245 employees on Somerville's list had signed the petition.

The Commission was therefore satisfied that a majority of employees did wish to bargain, and issued a majority support determination.

Textile, Clothing and Footwear Union of Australia v Jeanswest Corporation Pty Ltd

Textile, Clothing and Footwear Union of Australia v Jeanswest Corporation Pty Ltd [2014] FWC 1024 (Kovacic DP, 11 February 2014).

The TCFUA made an application for a majority support determination in respect of employees who were members or were eligible to be members of the union and who were employed by Jeanswest at its Moorabbin Airport Distribution Centre.

Jeanswest opposed the application submitting the union was not able to cover employees at the distribution centre. However, the union's rules indicated they were intended to have wide application.

The Commission found that the employees employed at the distribution centre were eligible to be members of the union.

A majority of employees signed a petition indicating their wish to bargain, the employer had not agreed to bargain or initiated bargaining and the group of employees had been fairly chosen.

The Commission determined that it was reasonable in all the circumstances to make the determination.

AMWU v Iveco Trucks Australia Ltd

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Iveco Trucks Australia Ltd [2013] FWC 5106 (Gooley DP, 29 July 2013).

The AMWU made an application for a majority support determination in respect of administrative, supervisory, technical and professional engineering employees of Iveco Trucks Australia Ltd. In support of its application, the AMWU submitted a petition signed by 62 employees.

Iveco submitted a staff list of 139 employees, excluding senior executive staff, who were within the scope of the AMWU's application. As a result the AMWU could not establish that a majority of employees supported bargaining.

The AMWU submitted that members who had not signed the petition should be presumed to want to bargain and that certain managerial staff should be excluded from the staff list.

The Commission found that there were 98 non-management employees on the staff list and 52 of these employees had signed the petition. Therefore there was a majority of non-managerial employees who wished to bargain. The Commission was satisfied that other legislative requirements had been met and issued a majority support determination.

National Union of Workers v ePharmacy Pty Ltd

National Union of Workers v ePharmacy Pty Ltd [2015] FWC 3819 (Gostencnik DP, 12 June 2015).

The NUW made an application for a majority support determination in respect of work performed in a warehouse or distribution centre environment by employees of ePharmacy. Employees that will be covered by the proposed agreement perform duties which include picking and packing items and filling of shelves.

ePharmacy objected on the basis that the work performed by employees who would be covered by the proposed enterprise agreement was primarily retail in nature. ePharmacy submitted that the duties to be performed were in the context of employees facilitating retail sales and were incidental to the fundamental duties of retail sales. As the NUW was not entitled to represent the industrial interests of retail workers it was not entitled to represent the relevant employees.

The Commission found that the employees were storeworkers performing traditional storeworker duties, such as the handling, picking and packing of goods in a distribution centre designed to cater for the dispatch of online sales orders. The employees were not engaged in retail sales. The Commission held that the NUW was entitled to represent the industrial interests of a member who was an employee that would be covered by the proposed enterprise agreement. The majority support determination was issued.

Majority support determination NOT made

The Australian Workers' Union v F. Laucke Pty Ltd T/A Laucke Mills

The Australian Workers' Union v F. Laucke Pty Ltd T/A Laucke Mills [2013] FWC 4632 (Hampton C, 12 July 2013).

The AWU made an application for a majority support determination in relation to employees of Laucke Mills covered by the Food, Beverage and Tobacco Manufacturing Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010. The application was supported by two employee petitions.

The Commission considered that on face value, a slim majority of employees supported the petitions. The Commission sought further submissions regarding the petitions. It emerged that there was a question about whether they demonstrated the necessary majority.

With the agreement of the parties, the Commission ordered a ballot of employees to be conducted by the Australian Electoral Commission. The declared results were that there were 39 employees within the employee group, 25 had voted, 19 had supported the question, five had voted against it and one vote was declared informal. Whilst a majority of those who voted were in support of proposition, the 19 votes did not represent a majority of the employee group.

The AWU argued that the ballot was indicative of strong support for bargaining and that in the circumstances the Commission should accept the one informal vote (which would provide a majority) or order a further ballot. The employer contended in response that there was no basis for the Commission to interfere with the declared result.

The Commission accepted that it had discretion to order a further ballot but concluded that a further ballot should not be ordered where two ballot processes (one of which was agreed) had not produced the requisite majority.

Accordingly, the Commission was not satisfied that a majority of the employee group wanted to bargain, and declined to make a majority support determination.

ASU v The Salvation Army (Peninsula Youth and Family Services)

Australian Municipal, Administrative, Clerical and Services Union v The Salvation Army (Peninsula Youth and Family Services) [2013] FWC 6287 (Johns C, 6 September 2013).

The ASU made an application for a majority support determination in relation to employees of The Salvation Army (Peninsula Youth and Family Services), except Directors and Residential Youth Services employees.

The application was made on 27 August 2013. The next day, the Salvation Army stated that it did not object to bargaining. Following clarification from the Commission, the Salvation Army confirmed that it agreed to bargain for an enterprise agreement covering employees, other than Residential Youth Services employees.

On this basis, the Commission could not be satisfied that the employer had not agreed to bargain. The application was dismissed.