FWC 4632
FAIR WORK COMMISSION
Fair Work Act 2009
s.236 - Application for a majority support determination
The Australian Workers' Union
F. Laucke Pty Ltd T/A Laucke Mills
ADELAIDE, 12 JULY 2013
Majority support determination - whether majority of employees have indicated a desire to commence bargaining - employee petitions - apparent very narrow majority - conjecture about one vote and sufficient to find that majority not clear - agreed process to utilise AEC ballot - ballot result narrowly failed to indicate majority support - jurisdictional basis for application not found - whether further ballot should be undertaken - not appropriate in the circumstances - application dismissed.
Background and history of the matter
 The Australian Workers’ Union (AWU) has made an application pursuant to s.236 of the Fair Work Act 2009 seeking a majority support determination (MSD) applying to F. Laucke Pty Ltd T/A Laucke Mills.
 The AWU has sought that a MSD be made by the Commission in relation to employees of Laucke Mills who are covered by the Food, Beverage and Tobacco Manufacturing Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010 (the employee group).
 The central requirement for the making of a MSD in this case is that a majority of the employee group wishes to commence bargaining with Laucke Mills for an enterprise agreement.
 The application filed relied upon two employee petitions covering each of the two modern award areas. By agreement of the parties, the AWU supplied the full version of the petitions to the Commission on a confidential basis. At the same time, Laucke Mills supplied a full list of the employees within the employee group on the same basis.
 Having considered that material I advised the parties that on face value, there was a majority (albeit a slim one) of relevant employees supporting the petitions at each of the time periods considered above. 1 I sought further submission in light of that preliminary view.
 It emerged that there was continuing controversy as to whether two employee ballots originally relied upon by the AWU demonstrated support from the necessary majority of employees. This was principally associated with the fact that within the employee group, one employee had apparently voted in support of the proposal and also indicted in a subsequent confidential process, that this was not the case. That single vote was sufficient to change the apparent result of the ballots.
 I subsequently advised both parties that without hearing evidence about the full circumstances of the ballots, and the circumstances of the employee concerned in particular, I could not resolve the apparent conflict. 2 Neither party sought that such an inquiry be conducted.
 In the end, I confirmed that I was not satisfied that the ballots demonstrated the necessary majority, primarily due to the closeness of the vote and some uncertainty about the intended position of at least one employee.
 Having advised the parties of those conclusions, Laucke Mills proposed that a postal ballot be conducted by the Australian Electoral Commission (AEC) and this proposal was subsequently accepted by the AWU. The basis of the proposal was that the parties would accept the outcome of the ballot as resolving the question of whether a majority of employees at Laucke Mills wanted to commence bargaining.
 Accordingly, on 7 June 2013, I made an order 3 to have the AEC conduct a ballot.
 The text of the question put to the employees in the ballot was as follows:
“The Australian Workers’ Union has applied to the Fair Work Commission for a majority support determination. The Commission has decided that it is appropriate to conduct a ballot of eligible employees to ascertain whether a majority of employees want to commence bargaining with Laucke Mills for an enterprise agreement.
The group of employees being balloted are those whose employment is covered by the Food, Beverage and Tobacco Manufacturing Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010.
Do you want to bargain for an enterprise agreement with your employer?
[ ] Yes [ ] No”
 In late June, a number of concerns about conduct during the ballot were raised with the Commission by both parties. I subsequently issued a Statement 4 that was provided to all relevant employees and displayed in the workplace. This was designed to remove any uncertainty about the circumstances in which the ballot was ordered by the Commission, including that it was an agreed process to resolve the impasse.
 On 28 June 2013, the AEC declared the results of the ballot and these included that of the 39 employees within the employee group, 25 had voted, 19 had supported the question, 5 had voted against, and there was 1 vote declared informal.
 Accordingly, whilst a majority of those who had voted were in support of the proposition, the 19 votes in support did not represent a majority of the employee group, by a margin of one vote.
The statutory requirements
 Sections 236 and 237 of the Act provide as follows:
“236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.
(2) The application must specify:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
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.
(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.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Operation of determination
(4) The determination comes into operation on the day on which it is made.”
 I note that there is no dispute that the AWU is a relevant bargaining representative and that the present application is valid. There is also no issue raised by Laucke Mills about the fairness of the chosen employee group.
 Laucke Mills has not agreed to bargain.
 On that basis, the immediate question remains whether a majority of the employee group wish to commence bargaining with Laucke Mills for an enterprise agreement.
 The AWU accept that given the results of the AEC ballot, the Commission cannot be satisfied that a majority of employees want to bargain. However, it contends that the ballot is indicative of strong support for bargaining, and that the single vote treated as informal had led to the negative outcome. In that context, the AWU proposed that the Commission should consider the acceptance of the excluded vote. 5
 The AWU also referred to some of the concerns about conduct leading into the AEC ballot and further contended that the Commission should give consideration to a second ballot being conducted, this time by the parties. It referred to another matter where the Commission had adopted that course of action. 6
 Laucke Mills opposed any further steps and sought the dismissal of the application. It referred to the fact that the AEC ballot was agreed by the parties and that this did not reveal that a majority of the group wanted to bargain. Further, it contended, in effect, that the AEC was the appropriate expert body to decide the ballot outcome and that there was no basis for the Commission to “interfere with the declared result”. 7
 In relation to the other matter where a further ballot was ordered, Laucke Mills took issue with that approach and sought to distinguish the circumstances.
 I cannot be satisfied that a majority of the employee group who are employed by Laucke Mills and who would be covered by the agreement, want to bargain. This is so, based upon both the initial employee ballots and the AEC ballot.
 Section 237(3) of the Act provides that the Commission may work out whether a majority of employees want to bargain using any method the FWC considers appropriate. I have used two different methods to seek to reach a conclusion on this issue.
 I do not consider that it is appropriate to go behind the AEC declared results or to seek to review its exclusion of the informal vote. The AEC is a statutory, independent authority for the conduct of ballots. Further, the AEC ballot was agreed by the parties and determined by the Commission as being the appropriate method to attempt to resolve the immediate issue.
 Given the provisions of s.237(3), I accept that the Commission would have discretion to order a further ballot. However, I do not consider that such an approach should be adopted in this case.
 It is evident that the employee group is split on the issue. The apparent desire of almost half of the employees to commence bargaining is a significant consideration particularly given the objects of the Act. 8 However, two relatively recent ballot processes have failed to produce the requisite majority. The second of these was an agreed process.
 The dismissal of the application would also not prevent a fresh application being made at some point in the future when/if the necessary majority support of the employee group can be demonstrated.
 In all of the circumstances of this matter, I do not consider that a further ballot or other process should be conducted at this time. Given that I am not satisfied that a majority of the employee group want to commence bargaining, there is no basis for the present application to be granted.
 The application must be dismissed and I so order.
K Rogers and M Hanson of The Australian Workers’ Union, SA Branch.
K Smith of EMA Legal, with permission, for F. Laucke Pty Ltd T/A Laucke Mills.
Final written submissions:
July 8 and 11.
1 Statement issued 23 April 2013.
2 Statement issued 8 May 2013.
4 Statement issued 26 June 2013.
5 Written submission, 8 July 2013.
6 Construction, Forestry, Mining and Energy Union v Oz Linemarking Pty Ltd  FWA 8485, per Ryan C.
7 Written submission, 11 July 2013.
8 See: Australian Municipal, Administrative, Clerical and Services Union v Equity Valet Parking Pty Ltd  FWA 2036 per Watson VP at pars  to .
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