“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Monde Nissin (Australia) Pty Ltd T/A Nudie Foods

[2020] FWC 717

[2020] FWC 717

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)
v
Monde Nissin (Australia) Pty Ltd T/A Nudie Foods
(B2020/63)

DEPUTY PRESIDENT DEAN SYDNEY, 13 FEBRUARY 2020

Application for a majority support determination.

[1] On 4 February 2020 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made an application for a majority support determination pursuant to s.236 of the Fair Work Act 2009 with respect to certain employees of Monde Nissin (Australia) Pty Ltd T/A Nudie Foods (Nudie Foods) employed at its site in Eastgardens, NSW.

[2] The AMWU seeks a determination that a majority of these employees, who are presently covered by the Food, Beverage and Tobacco Manufacturing Award 2010, want to bargain with Nudie Foods for an enterprise agreement.

[3] The application was not opposed by Nudie Foods. In the circumstances, I am satisfied that the application can be determined ‘on the papers’.

[4] The relevant provisions of the Act are contained in ss.236 and 237 of the Act:

“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.”

[5] On 7 February 2020 the Commission issued Directions for the AMWU to file supporting material including the petition on which it relied, and for Nudie Foods to file a list of the relevant employees.

[6] The petition provided by the AMWU contained 23 signatures and contained the following preamble:

“I want to bargain for an enterprise agreement with Monde Nissin (Australia) Pty Ltd (trading as Nudie). I agree to this petition being provided to the Fair Work Commission to prove that employees at the 77 Corish Circle Eastgardens NSW 2036 site who have signed this petition want to bargain for an enterprise agreement.”

[7] The AMWU also provided the Commission with a statutory declaration of Mr Tyler Whitlam (Growth Organiser) who detailed the manner in which the petition was circulated.

[8] Having examined the petition and cross-checked the signatories against the list of employees identified by Nudie Foods, I am satisfied that a clear majority of the employees want to bargain for an enterprise agreement.

[9] On the material before me, and in particular in the absence of any challenged evidence, I am satisfied that:

a. the AMWU is a bargaining representative for employees who will be covered by the proposed agreement and is capable of making the application for a majority support determination (s.236);

b. a majority of the employees of Nudie Foods who will be covered by the proposed agreement want to bargain (s.237(2)(a));

c. Nudie Foods has not yet agreed to bargain for the proposed agreement (s.237(2)(b));

d. the group of employees who will be covered by the proposed agreement was fairly chosen (s.237(2)(c)); and

e. it is reasonable in all the circumstances to make the determination (s.237(2)(d)).

[10] In conclusion, I am satisfied that all requirements of ss.236 and 237 of the Act have been met. Accordingly, the Commission must make the majority support determination sought by the AMWU. A Determination will issue with this decision.

DEPUTY PRESIDENT

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