DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(B2021/548)

COMMISSIONER O'NEILL

MELBOURNE, 2 AUGUST 2021

Application for a majority support determination

[1] On 16 July 2021, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) applied for a majority support determination in relation to Fyna Foods Australia Pty Ltd. The proposed enterprise agreement would cover “those employees currently covered by the Fyna Foods (Vic) Pty Ltd Enterprise Agreement 2015-2018, namely all employees of the employer who perform production, packing and warehouse work”.

[2] Following a mention on 22 July 2021, I issued an Order 1 amending the name of the Respondent to Fyna Foods (Vic) Pty Ltd. On a confidential basis, on 22 July 2021 the AMWU provided petitions signed by employees of the Respondent stating that they wanted to bargain and on 30 July 2021 the Respondent provided a list of its employees who would be covered by the proposed agreement. A comparison of these two lists has satisfied me that a majority of relevant employees want to bargain for the proposed agreement. After notifying the parties of this assessment, the Respondent advised that it did not object to the making of a Majority Support Determination.

[3] Based on the material before the Commission, I am satisfied that a majority of employees who are employed and who will be covered by the proposed agreement want to bargain and that the group of employees is fairly chosen. I am satisfied that the requirements of ss.236 and 237 of the Act have been met and that it is reasonable in all the circumstances to make the determination.

[4] Accordingly, the Commission determines as follows:

“A majority of employees employed by Fyna Foods (Vic) Pty Ltd performing production, packing and warehouse work within the state of Victoria wish to bargain for an enterprise agreement with their employer.”

[5] Pursuant to s. 237(4) of the Act, this majority support determination comes into operation on 2 August 2021. A Determination to this effect will be separately issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR732307.

CaseChat Overview and Summary

The union, known as the Australian Manufacturing Workers' Union, applied to the Fair Work Commission for a majority support determination in relation to its enterprise agreement. The employer contested the application, asserting that the union did not have majority support of the relevant employees. The case was heard by the Fair Work Commission, presided over by Deputy President G N Richardson.

The legal issue before the Court was whether the union could demonstrate majority support for the enterprise agreement amongst the relevant employees. The union had to prove that it had the support of more than 50% of the employees in the relevant bargaining unit. The employer argued that the union had not provided sufficient evidence to establish this majority support.

The Fair Work Commission found that the union had not provided sufficient evidence to demonstrate majority support. The union had relied on a survey conducted by an independent third party, but the employer raised concerns about the survey's methodology and the representativeness of the sample. The Court found that the union had not provided sufficient evidence to establish majority support, and therefore the application was dismissed.

The Fair Work Commission ordered that the application for a majority support determination be dismissed. The union was directed to pay the employer's costs of the application, which were estimated to be $15,000. The union was also ordered to provide the employer with a copy of the survey and any other materials used in the application.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established