Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Cochlear Limited

The matter before the Fair Work Commission involved a dispute between the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the Union) and Cochlear Limited (the Employer). The Union sought to have a particular enterprise agreement recognised as a validly certified agreement, while the Employer challenged the validity of the certification process. The dispute was heard in the Commission under its jurisdiction to make majority support determinations for the purpose of resolving enterprise agreement disputes.

The primary legal issue before the Commission was whether the Union had correctly followed the process set out in the Fair Work Act 2009 for seeking to have an enterprise agreement certified. The Union argued that it had obtained the requisite majority support from the relevant employees to have the agreement recognised. The Employer contended that the Union had not correctly followed the necessary procedures, and therefore the agreement should not be certified. The Commission had to determine whether the Union's process complied with the legislative requirements for a valid majority support determination.

In its decision, the Commission found that the Union had not followed the process correctly, as it had not provided the Employer with the requisite 21 days' notice of the proposed agreement. The Commission held that this procedural error meant that the agreement could not be certified as a validly made agreement. The Union's failure to comply with the procedural requirements of the Act was fatal to its application. Consequently, the Commission dismissed the Union's application for a majority support determination.

The Commission made no orders in favour of either party. The Union's application to have the enterprise agreement recognised was dismissed, and the agreement remained uncertified.