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

[2011] FWA 7928

[2011] FWA 7928

FAIR WORK AUSTRALIA

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)
v
Edlyn Foods Pty Ltd
(B2011/258)

COMMISSIONER LEE MELBOURNE, 16 NOVEMBER 2011

Bargaining - majority support determination

[1] On 4 October 2011, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made application to Fair Work Australia for a majority support determination with respect to certain employees of Edlyn Foods Pty Ltd (Edlyn Foods). The application was made pursuant to section 236 of the Fair Work Act 2009 (the Act).

[2] The matter was heard before me on 14 November 2011. Ms E. McGrath appeared on behalf of the AMWU and Mr M. Ritchie and Ms K. Tofters of the Victorian Employers’ Chamber of Commerce and Industry (VECCI) appeared for Edlyn Foods.

[3] After hearing submissions from both parties, I delivered an ex tempore decision in which I granted the application as sought and provided an outline of my reasons for doing so. The following is an edited version of the decision given on 14 November 2011.

[4] In determining whether to grant the application as sought by the AMWU it is necessary for me to consider the various matters that are raised in section 237 of the Act. Relevantly section 237 provides as follows:

“237 When FWA must make a majority support determination

Majority support determination

(1) FWA 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) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWA must be satisfied before making a majority support determination

(2) FWA must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by FWA; 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.

[5] The first issue to determine is whether a majority of employees of Edlyn Foods who will be covered by the proposed agreement want to bargain. Section 237 subsection (3) provides Fair Work Australia with a capacity to decide on an appropriate method of determining the majority support position. The AMWU put to me in the proceedings that I should rely on two petitions that have been signed by, they say, a majority of employees of Edlyn Foods. Both of those petitions were provided to me on a confidential basis.

[6] VECCI for Edlyn Foods put to me that there was lack of evidence that majority support existed and that I should dismiss the application. Alternatively VECCI argued that Fair Work Australia should order an AEC ballot be conducted on the basis that the petitions that have been provided to me are not reliable as indicators of majority support for a number of reasons. VECCI raised a number of concerns they believe the Tribunal should have about the petitions, including but not limited to the potential for employees to have been coerced into the signing of the petition.

[7] Circumstances may arise where a petition cannot be relied upon as a means for Fair Work Australia to determine whether or not there is majority support for bargaining. One example may be duress or coercion of employees. Another example of a circumstance where it would not be proper for Fair Work Australia to accept a petition may be where the proposition that was put to employees was in some way confusing or not clear. I have found that those circumstances did not arise in this case. The first petition that has been provided to me is headed with the proposition:

“The workers of Edlyn Foods which is at 13 Ricky Way, Epping, Victoria would like to be covered by a collective agreement and would like the AMWU to represent us in these negotiations. If you wish to have the AMWU as your bargaining representative, please sign below.”

[8] There follows a number of names, both first names and surnames, dates and signatures. The second petition has a heading "AMWU Majority Support Petition" and then under that a paragraph which says:

“We, the undersigned employees of Edlyn Foods employed at 13 Ricky Way, Epping, hereby wish to signify that we want to bargain with Edlyn Foods for an enterprise agreement under Fair Work Act 2009 to apply to Edlyn Foods' employees.”

[9] There follows after that heading a number of names and addresses, signatures and dates. Both of those petitions in my view clearly deal with the issue of whether employees want to bargain for an enterprise agreement with their employer. While I do accept that the second petition is clearer in its terms, in my view, the first petition is also reliable.

[10] There was evidence provided by the managing director of Edlyn Foods, Mr Donelly and Ms Churcher, Organiser, for the AMWU. Mr Donelly provided evidence about the nature of the business; among other things, the generous terms and conditions of employment that are provided and that the company has not in his experience been subject to an enterprise agreement in the past. He also gave evidence that there are 30 relevant employees and he also agreed that the employer does not want to bargain for an agreement.

[11] Mr Donelly provided evidence that four or five people had expressed concern to him about entering into an enterprise agreement. Mr Donelly also expressed a view that it was hard to believe that things have changed from earlier times when there was not support for bargaining at the company. While that evidence certainly provides an indication of the feeling of Mr Donelly about how things may have changed and provides evidence of views that have been expressed by people about their bargaining related concerns, it does not undermine the validity of the petitions that were provided and does not discredit them.

[12] Ms Churcher gave evidence about the means by which the second petition was compiled. Ms Churcher provided evidence that she gathered signatures whilst located at a garage or petrol station, somewhere near the company for a period of some hours on 2 November 2011.

[13] In cross examination Mr Ritchie sought information from Ms Churcher on the way in which the petition was signed. Ms Churcher, in my view, was responsive to this examination and she most certainly agreed that it was possible that some things may have occurred that would call into question the integrity of the petition. However, while conceding many things may occur, there was no evidence forthcoming that anything did in fact occur that would lead me to question the integrity of the petition. Ms Churcher, while she conceded a range of scenarios put to her by Mr Ritchie were possible, did not concede that they had in fact occurred.

[14] Accordingly, I consider that both petitions present an appropriate means of establishing a majority employee position. In both petitions there is a majority of the 30 employees who may be covered by the agreement who have signed the petition. These names align with the list of relevant employees provided to the Tribunal by Edlyn Foods. I therefore find that the requirements of section 237 subsection (2)(a) are met.

[15] As to further matters, there is common ground, as evidenced by Mr Donelly and submitted by the AMWU, that the employer does not wish to bargain and there is no issue as to whether the group of employees was fairly chosen. So in those circumstances section 237 subsection (2)(b) and (c) are met. I therefore consider it is reasonable in these circumstances that a majority support determination should be made and a determination consistent with this decision will be issued concurrently. 1

COMMISSIONER

Appearances:

E McGrath for “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

M Ritchie with K Tofters for Edlyn Foods Pty Ltd

Hearing details:

2011
Melbourne:
November 14

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