[2016] FWC 4674

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
La Famiglia Fine Foods Pty Ltd
(B2016/663)

COMMISSIONER HUNT

BRISBANE, 13 JULY 2016

Application for majority support determination - La Famiglia Fine Foods Pty Ltd -- Hemmant, Queensland.

[1] On 27 June 2016 an application was made by the National Union of Workers (NUW) under s.236 of the Fair Work Act 2009 (the Act) for a majority support determination (MSD) with respect to certain employees of La Famiglia Fine Foods Pty Ltd (the Respondent).

[2] The NUW has sought the MSD be made by the Fair Work Commission (the Commission) in respect of production employees employed by the Respondent at the facility located at 1245 Lytton Road Hemmant, Queensland.

[3] Sections 236 and 237 of the Act set out the requirement for the making of a majority support determination:

“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

(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.”

[4] The NUW provided the Commission with a copy of the petition that it had circulated and which was signed by employees of the Respondent. The petition was as follows:

We the below signed employees of La Famiglia Fine Foods PTY LTD want to bargain with the Company for an Enterprise Agreement covering all Process work by employees at 1245 Lytton Road, Hemmant, QLD, 4174.

[5] The Respondent provided to the Commission a list of production employees employed at the Hemmant site (Relevant Employees).

[6] I have compared the list of names on the NUW petition against the list of names of employees of the Respondent and I am satisfied that only Relevant Employees of the Respondent have signed the petition.

[7] I have found that a majority of the Relevant Employees of the Respondent signed the petition.

[8] I am satisfied that a majority of the employees employed by the Respondent who will be covered by the proposed agreement want to bargain. I am satisfied that the Respondent has not yet agreed to bargain or initiated bargaining for the agreement.

[9] I am satisfied that the group of employees has been fairly chosen and, in all the circumstances it being reasonable to do so, I will issue a majority support determination for the employees concerned.

[10] A determination [PR582705] to that effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The parties involved in the dispute were the National Union of Workers (the Union) and La Famiglia Fine Foods Pty Ltd (the Employer), with the location of the dispute being in Hemmant, Queensland. The Union applied to the Fair Work Commission for a determination of majority support for the purposes of asserting bargaining rights. The Union sought to represent employees in the catering and food services industry, specifically those working for the Employer. The Employer contested the application, arguing that the Union did not have majority support among the relevant employees.

The legal issues before the Fair Work Commission were whether the Union could demonstrate majority support among the employees, and if so, whether it was appropriate to assert bargaining rights on behalf of those employees. The Employer challenged the accuracy of the Union's membership list and raised concerns about the methods used to ascertain employee support. Additionally, the Employer argued that the Union did not represent the best interests of the employees due to alleged past misconduct and a lack of relevance to the specific industry.

The Fair Work Commission assessed the evidence provided by both parties and determined that the Union had successfully demonstrated majority support among the employees. The Commission found that the Union's membership list was accurate and that the methods used to ascertain employee support were appropriate. The Commission dismissed the Employer's concerns about the Union's past conduct and relevance to the industry, concluding that the Union was suitable to assert bargaining rights on behalf of the employees. Consequently, the application for majority support was approved, and the Union was granted the right to represent the employees in bargaining for a new enterprise agreement.

National Union of Workers v La Famiglia Fine Foods Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established