National Union of Workers v Lifestyle Bakery Pty Ltd

[2016] FWC 784

[2016] FWC 784

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Lifestyle Bakery Pty Ltd
(B2015/595)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 5 FEBRUARY 2016

Application for a majority support determination - insufficient evidence that a majority of employees who will be covered by the agreement want to bargain - application dismissed.

[1] This decision concludes a long running application for a majority support determination made by the National Union of Workers (the NUW) on 12 June 2015. On 14 July 2015 I issued a decision 1 in which I addressed the majority support determination application and an application made under s.505 of the Fair Work Act 2009 (the FW Act) for an order relative to the exercise of entry rights.

[2] In terms of the majority support determination I concluded that the NUW is able to represent the industrial interests of employees, engaged as bakers and process workers who are employed by Lifestyle Bakery Pty Ltd (Lifestyle Bakery). I had regard to a petition signed by various employees of Lifestyle Bakery but concluded that I was not satisfied that this petition established that a majority of the employees engaged in food manufacturing wished to bargain for an agreement. 2 I confirmed my intention to request the Australian Electoral Commission to conduct a secret ballot of employees to determine this issue. I indicated that this ballot would take into account the diverse language and communication issues impacting on Lifestyle Bakery employees. In that decision I indicated that my conclusions about the factors set out in s.237 of the FW Act would be finalised on the basis of that ballot outcome.

[3] The conclusion of that secret ballot was delayed pending the determination of an appeal against that 14 July 2015 decision. That appeal was determined on 30 October 2015. 3 The appeal was refused and the matter was remitted back to me for determination.

[4] I note that, in the conduct of the ballot, the parties raised various questions and concerns. Notwithstanding this, there was no enduring objection to the conclusion of that ballot. The results of that ballot were declared by the Australian Electoral Commission on 21 December 2015 and I forwarded this declaration to the parties on 22 December 2015. The parties were advised that any further submissions relative to the application should be made by 8 January 2016 and that, subject to any such further submissions, a decision in the matter would then be issued.

[5] No further submissions have been received.

[6] The Declaration of Results confirms that there were 46 employees on the roll of voters and eight employees voted in the matter. I note that all eight of those voters voted in favour of the proposition that they wanted to bargain with Lifestyle Bakery for an Enterprise Agreement.

[7] Section 237 of the FW Act states:

“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.”

[8] There is no information before me that indicates that the conduct of the ballot to determine whether a majority of employees wanted to bargain with Lifestyle Bakery was, in any way, inappropriate. In terms of subsection (2) I am not satisfied that a majority of the employees employed by Lifestyle Bakery at the time the Australian Electoral Commission conducted the ballot, and who would be covered by the proposed agreement, wanted to bargain with the employer. That requirement is a fundamental prerequisite which must be satisfied in order to enable a majority support determination to be made.

[9] Absent that majority support, the application for a majority support determination must be dismissed.

 1   [2015] FWC 4720

 2   Ibid, par [39]

 3   [2015] FWCFB 6324

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