“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)-New South Wales Branch v Hofmann Engineering Pty Ltd

[2025] FWC 1401

[2025] FWC 1401

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)-New South Wales Branch
v

Hofmann Engineering Pty Ltd

(B2025/621)

DEPUTY PRESIDENT GRAYSON SYDNEY, 21 MAY 2025

Application for majority support determination - majority reached - determination made

1. This decision relates to an application made by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) under s.236 of the Fair Work Act 2009 (Cth) for a majority support determination to undertake bargaining for an agreement to cover employees of Hofmann Engineering Pty Ltd (Hofmann / the Respondent) at the Respondent’s Broadmeadow site and whose employment is covered by the Manufacturing and Associated Industries and Occupations Award 2020 (with the exception of supervisors).

1. The AMWU wrote to Hofmann seeking to commence negotiations for a new enterprise agreement. In response, Hofmann did not agree to bargain with employees for a new enterprise agreement and advised the AMWU as follows:

“…As this is the first time that we have been asked this question and considering the amount of effort required to negotiate such an agreement, we will need to be convinced that your proposal to negotiate is supported by a majority of employees at this site. Our discussions with them indicate otherwise. Therefore at this stage, we do not agree to commence negotiations.”

Relevant Legislation

1. Sections 236 and 237 of the Act relates to applications for majority support determinations:

“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.

(1A) Despite subsection (1), a bargaining representative may not apply to the FWC for a determination if a supported bargaining authorisation that specifies the employee is in operation.

Note: While a supported bargaining authorisation that specifies an employee is in operation, an employer cannot bargain with that employee for any kind of agreement other than a supported bargaining agreement (see subsection 172(7)).

(1B) Despite subsection (1), a bargaining representative of an employee may not apply to the FWC for a determination if:

(a) a single interest employer agreement or a supported bargaining agreement applies to the employee; and
(b) the agreement has not passed its nominal expiry date.

(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) 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.”

Consideration

1. On 9 April 2025 the MEU filed the application after collecting petitions from employees. On 24 April 2025 I issued directions that the AMWU file a statutory declaration addressing the circumstances in which the Petition was obtained, and copies of any document or correspondence provided to the employees during the collection of the Petition in the Commission by 1 May 2025.  On the same date the Respondent was to file with the Commission a list of employees at the Respondent’s Broadmeadow site and whose employment is covered by the Manufacturing and Associated Industries and Occupations Award 2020 (with the exception of supervisors). The parties filed the material as directed.

1. On Monday 12 May 2025, I directed that email correspondence be forwarded to the parties as follows:

“Dear Parties,

Chambers has reviewed the materials filed by the Applicant and the Respondent, and is satisfied that s237(1), s237(2)(a) and s237(2)(b) of the Fair Work Act have been satisfied.

Please find the attached directions for evidence and submissions relating to s237(c) and (d) of the Fair Work Act and any other relevant matters.”

1. On 16 May 2025, the Respondent sent email correspondence to my Chambers advising that they have no objection to the majority support determination being made, and that the order can be granted with the consent of the Respondent (Hofmann Engineering).

1. I have considered the material filed by the parties and each of the matters I am required to take into account before making a majority support determination. I am satisfied that the application has been made, and I am satisfied that the majority of the employees who are currently employed by the employer, and who will be covered by the agreement, want to bargain.

1. I am satisfied that the Respondent has not yet agreed to bargain or initiated bargaining for the agreement.

1. I am satisfied, taking into account whether the group is geographically, operationally or organisationally distinct, that the group of employees who will be covered by the agreement was fairly chosen.

1. I am satisfied that it is reasonable in all circumstances to make the majority support determination.

Conclusion

1. As I am satisfied that a majority of the relevant and current employees who will be covered by the proposed agreement wish to bargain for an enterprise agreement, and that each of s.237(1) and s.237(2)(a), (b), (c) and (d) have been met, pursuant to s.237(1) I must make a majority support determination. I therefore make the determination which will operate from today being 21 May 2025.

DEPUTY PRESIDENT

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