National Union of Workers v Lifestyle Bakery Pty Ltd

[2015] FWC 4720

[2015] FWC 4720 [Note: Appeals pursuant to s.604 (C2015/4887, C2015/5030) were lodged against this decision - refer to Full Bench decisions dated 30 July 2015 [[2015] FWCFB 5199] and 30 October 2015 [[2015 FWCFB 6324] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
s.236 - Application for a majority support determination

National Union of Workers
v
Lifestyle Bakery Pty Ltd
(RE2015/837)
(B2015/595)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 14 JULY 2015

Application to deal with a right of entry dispute re Lifestyle Bakery Pty Ltd - coverage of the NUW rules - application for a majority support determination.

[1] On 12 June 2015 the National Union of Workers (NUW) lodged two applications. This decision deals initially with an application made under s.505 of the Fair Work Act 2009 (the FW Act). In that application, the NUW sought an Order which would allow NUW Right of Entry permit holders to enter the Lifestyle Bakery Pty Ltd (Lifestyle Bakery) premises pursuant to s.484 of the FW Act. This first application followed Lifestyle Bakery’s refusal to allow NUW permit holders to enter the site on at least one occasion. The second application made by the NUW on 12 June 2015 sought a majority support determination pursuant to s.236 of the FW Act. In this decision, I also set out the position I have adopted relative to this second application.

[2] In the hearings relative to these matters, Ms Barrett and Mr Richardson have appeared for the NUW, together with, on some occasions, Mr Whenan and Ms Ricketts. Mr Duc and Ms Bradbrook, of counsel have appeared for Lifestyle Bakery pursuant to an unopposed grant of permission made under s.596(2)(a).

[3] The common theme relative to both applications relates to whether the NUW is able, under its rules, to have as members, employees of Lifestyle Bakery. Additionally, and specifically relative to the majority support determination application, the parties disagree over what information has been provided to employees, and particularly employees from non-English speaking backgrounds, relative to their bargaining rights and opportunities.

[4] Before setting out the evidence before me it is appropriate that I summarise the background to the matter and the chronology of the hearings convened to date.

[5] Lifestyle Bakery manufactures breadandbread type products. It employs 70-80 staff. A significant proportion of its employees are from diverse non-English-speaking backgrounds and at least some of these employees are members of the NUW. Employees are currently engaged pursuant to the terms of the Food, Beverage and Tobacco Manufacturing Award 2010.

[6] On 16 June 2015 I issued an Interim Order 1 relative to the Right of Entry matter. In summary terms that permitted continuing entry rights on not more than a weekly basis.

[7] The 26 June 2015 hearing enabled consideration of evidence which I have summarised below. At this hearing, I also provided the parties with copies of two decisions of the former Australian Industrial Relations Commission and a Memorandum of Agreement provided by the NUW to that Commission in 1996. The parties requested the opportunity to provide written closing submissions which incorporated consideration of this material.

[8] On 29 June 2015 I convened a brief hearing in response to concerns raised by Lifestyle Bakery that the NUW was again seeking to exercise entry rights before the matter was concluded. I refused the Lifestyle Bakery request for an Order stopping further entries pending the conclusion of the matter because I was satisfied that, independent of the provisions of the NUW Rules, that union had various members at the site and it was appropriate that, just as Lifestyle Bakery could confer with its employees, so to should the NUW be able to talk with its members. The NUW undertook not to convene these discussions for the purpose of encouraging employees to join that union.

[9] At a hearing on 8 July 2015 Lifestyle Bakery expressed similar concerns over proposed NUW entries.The NUW similarly undertook not to convene discussions prior to the publication of any decision in this matter, for the purpose of encouraging employees to join that union. I advised that, on this basis I was not prepared to further limit or prohibit continuing access to entry rights under Part 3-4 of the FW Act at that time, but reserved to Lifestyle Bakery, the right to refer further issues of concern to me should these arise.

The Evidence

[10] Ms Ricketts, an Organiser for the NUW, gave evidence about her visits to the Lifestyle Bakery site and her discussions with the employees. This evidence went to her communications with the employees, through an interpreter, about the possible negotiation of an enterprise agreement. Ms Ricketts detailed the advice given to employees which led to their signing a petition in support of proposed enterprise agreement negotiations.

[11] Mr Horrocks is the Lifestyle Bakery Managing Director. His evidence went to the products manufactured by Lifestyle Bakery, and the manufacturing and distribution processes. Mr Horrocks also detailed the frequency of the NUW visits.

[12] Ms Dela Paz is the Lifestyle Bakery Human Resources Manager. Her evidence went to the process she followed to identify and communicate with various employees who had signed the NUW petition. She then asked those employees to meet with the Lifestyle Bakery lawyer, Ms Bradbrook to inform her of the circumstances under which they signed the petition.

[13] Ms Bradbrook gave evidence about the nature of her discussions with those employees.

[14] Witness statements were provided for seven Lifestyle Bakery employees. Two of those employees gave evidence. Having heard two of those employees, I advised the parties that I was so concerned with language-based communication difficulties that I was unsure about the understanding those employees had of their communications with the NUW, Lifestyle Bakery management and relative to the questions asked of them as witnesses that I did not consider that the remaining five proposed employee witnesses should be called. I advised the parties that, if I was satisfied about the capacity of the NUW to enrol the Lifestyle Bakery employees as members, I proposed to assess the majority employee position in relation to the majority support determination, through a ballot to be conducted by the Australian Electoral Commission with appropriate translation facilitation. Both the NUW and Lifestyle Bakery accepted this approach.

Is the NUW able to enrol as members, employees of Lifestyle Bakery?

[15] Part 3-4 of the FW Act establishes that officials of unions are permitted to enter workplaces. Those entry rights are limited in three primary ways. Firstly, that union must be capable of representing the industrial interests of the employees involved. Secondly, the official must have been assessed as a person suitable to be a permit holder and be the holder of such a permit. Finally, the notice and behaviour requirements specified in the FW Act must be complied with. In this matter the only issue goes to whether the NUW is able to enrol the Lifestyle Bakery employees. Whilst it is quite conceivable that other issues, including, but not limited to, the frequency of visits or the behaviour of officials could be referred to the FWC, none of those matters require consideration here.

[16] Section 484 states:

“484 Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

(a) who perform work on the premises; and

(b) whose industrial interests the permit holder’s organisation is entitled to represent; and

(c) who wish to participate in those discussions.

Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).

Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.”

The jurisdiction for the FWC to determine whether the entry rights specified in this section can be accessed by NUW permit holders is established by s 505. This section states:

[17] Any consideration of the capacity of the NUW to enrol employees must depend on its rules. The approach to consideration of those rules then becomes critical. The FWC approach to the consideration of union rules was developed in a very different legislative environment where union membership could, in many instances, determine employment conditions. The FW Act operates from a different premise in that awards operate on industry or occupational definitions and agreements are approved arrangements between employers and employees. That different legislative environment lends further support to the application of a broad meaning to the terms in the relevant rules.

[18] The requirement for that broad approach was articulated in the Full Bench decision of the Australian Industrial Relations Commission in Metal Trades Industry Association of Australia v Electrical Trades Union of Australia and Ors 2 in the following terms:

“The fact that the expression ‘electrical industry’ is the singular does not assist greatly in construing that part of the rule. To identify various industries that might be employer industries comprehended by the expression ‘electrical industry’ is simply to disaggregate that which is described by the one expression. There is no reason, in our view, why the expression should not be treated as having a broad meaning ...”

....

The eligibility rules of the ETU were formulated over half a century ago. The union represents employees in areas of industry where technological developments have, in that period, been profound.”

[19] Just as the ETU rules were over 50 years old at that time, so too the NUW rules, are the culmination of around 100 years of drafting reflective of union amalgamations and compromises. Additionally, there can be no doubt that many of the products and commercial structures identified in those rules have been superseded by changed practices and approaches.

[20] Rule 5G(i) of the NUW rules states:

“5 - CONDITIONS OF ELIGIBILITY

....

(G) (i) The Union shall consist of persons who are bona-fide employees, wholly or partly engaged in any capacity in the manufacture or preparing for sale of (a) candles, (b) soap, soap powders and extracts, soda, (c) starch, (d) blue (washing), boot blacking, boot polish, boot paste, boot stains, black lead, charcoal, coal dust, cloudy ammonia, dubbo, ebonite shine, furniture polish, glycerine, greases, harness dressing, harness compounds, ink, knife polish, kindlers, linoleum and oilcloth polish, metal polish, moulders’ blacking, oils, phenyl, plumbago preparations, stove polish, vaseline, (e) condiments and cereal foods, and all other articles, goods and preparations usually or commonly known as Grocers' sundries including arrowroot, baking powder, barley, bicarbonate of soda, bird seed, borax, brose meal, carraway seeds, cassia, castor sugar, chicory, chicorine, chillies, chocolate, cinnamon, citric acid, citron peel, cloves, cocoa, coffee, coffee essence, coriander seed, cornflour, cornina, cream of tartar, cummin seed, curry powder, custard powder, copras oils, condensed milk, dessicated coconut, digestive meal, epsom salts, fennel, fenugreek, flavouring essences, graham flour, groats, ginger, haricot beans, hommell, hemp seed, icing sugar, jellies, lemon peel, lentils, linseed, linseed meal, macaroni, mace, magnesia, meal wheat, malt preparations, maize meal, millet seeds, mustard, nutmegs, oatmeal, oats, orange peel, peas, pepper, pimento, patent foods, rape seed, rice, sago, sago flour, self-raising flour, spices, semolina, sulphur, tapioca, tartaric acid, vermicelli, (f) matches and matchboxes, (g) glucose and all products of maize and all other similar or allied preparations, goods or articles.”

[21] The Lifestyle Bakery position is that this rule does not provide for coverage of its employees. Lifestyle Bakery assert that its bread and bread type products should not, on the basis of the differentiation of baking within the Australian and New Zealand Standard Industrial Classification (ANZSIC) be regarded as a function covered by the concept of the manufacturer in preparation for sale of cereal foods. Lifestyle Bakery assert that:

“18. The Commission may consider the words “cereal foods” encompasses the baking and distribution of bread. For the following reasons, bread is not a “cereal food”.

19. Cereal foods refers to a wide range of products, none of which are a completed product like bread, bread rolls or pizza bases.

20. The Australian Bureau of Statistics in its 1292.0 – Australian and New Zealand Standard Industrial Classification (ANZSIC), 2006 (Revision 2.0) contains the following description of the industry in which cereal foods are manufactured:

Division C MANUFACTURING
Subdivision 11 FOOD PRODUCT MANUFACTURING
Group 116 GRAIN MILL AND CEREAL PRODUCT MANUFACTURING
Class 1162 Cereal, Pasta and Baking Mix Manufacturing

This class consists of units mainly engaged in manufacturing prepared cereal foods (including oatmeal), fresh and dried pasta, and prepared baking mixes.

Primary activities

Baking mix, prepared, manufacturing
Bread mix, dry, manufacturing
Cereal food manufacturing n.e.c.
Coatings made from cereal food (except biscuit or breadcrumb) manufacturing
Custard Powder manufacturing
Dessert, dried prepared, manufacturing
Noodle manufacturing
Oatmeal manufacturing
Oats, hulled or shelled, manufacturing
Oats, kilned or unkilned, manufacturing
Pasta, fresh or dried, manufacturing
Pastry mix manufacturing

Exclusions/References
Units mainly engaged in
Milling flour from grains, vegetables and plants are included in Class 1161 Grain Mill Product Manufacturing;
manufacturing fresh or frozen bread dough are included in Class 1171 Bread Manufacturing (Factory based);
Manufacturing frozen pastry products are included in Class 1172 Cake and Pastry Manufacturing (Factory based); and
Manufacturing grain offal, crushed grain or cereals for animal or bird feed and fodder are included in Class 1192 Prepared Animal and Bird Feed Manufacturing. [emphasis added]

21. The Commission will note the explicit exclusion of fresh or frozen bread dough, which the Respondent produces.

22. Bread baking in a factory is in another industry classification (117).

23. In the Respondent’s submission, the Commission should be satisfied that bread is not a “cereal food” for the purposes of the NUW rules.” 3

[22] Further, Lifestyle Bakery assert that its products are not “grocers’ sundries” in that the baking and distribution of bread should not be regarded in that context. Lifestyle Bakery asserts that decisions of the former Australian Industrial Relations Commission in the mid 1990’s indicate that the merger of the former Australian Liquor, Hospitality and Miscellaneous Workers Union and the Baking Trades Union of South Australia confirmed that union had coverage of the types of employees engaged by Lifestyle Bakery. Lifestyle Bakery assert that then Deputy President Williams endorsed rule changes for the NUW to reflect union mergers in NSW and which rule changes remain incorporated in the NUW rules today and that these changes should be read in concert with a Memorandum of Agreement signed by the NUW which specified:

“…. the National Union of Workers hereby undertakings that it will not, as a result of any alterations to its industry and eligibility rules in D. No.30036 of 1995, seek to extend beyond NSW its membership in relation to persons who are employed or competent to be employed in the pastrycooking or biscuitmaking industry, or seek to extend its membership into the traditional areas of membership of the Australian Liquor, Hospitality & Miscellaneous Workers Union, or seek to alter the status quo as to membership and coverage between the National Union of Workers and the Australian Liquor, Hospitality & Miscellaneous Workers Union.” 4

[23] The Lifestyle Bakery position was that this undertaking demonstrates that the NUW capacity to enrol biscuit-makers and pastry cooks should be confined to New South Wales.

[24] The NUW position is that the Lifestyle Bakery products are properly regarded as “grocers’ sundries” such that the employees are eligible to join that union. Further, the NUW argues that bread and bread type products should be regarded as “cereal foods” such that the employees were wholly or partly engaged in the manufacture or preparing for sale of those “cereal foods” for the purposes of the rule 5(G)(i)(e).

[25] The Oxford dictionary definition of cereal foods states:

“cereal … of corn or edible grain … kind(s) of grain used for human food; food made from wheat, maize, or other cereal ….”

[26] I am satisfied that, on a broad application of rule 5(G)(i)(e), bread and bread type products should be regarded as cereal foods. Those bread type products have as significant components, cereals which include rice, flour and maize starch. That conclusion is consistent with the dictionary definition of cereal foods. I do not consider that the ANZSIC description of the products composed as cereals and its qualification of the term “bread” should be applied to limit the broader concept of “cereal foods” referenced in the NUW rules. In this respect I do not consider that the ANZSIC descriptors were relevant to the adoption of the rule in question such that they should then be applied to limit the application of that rule. Further, I am not satisfied that the ANZSIC Standard descriptors inherently limit the concept of “cereal foods”. It seems to me that the ANZSIC descriptors identify different categories of cereal foods and in that respect differentiate the manufacturing of fresh or frozen bread dough and bread manufacturing from other forms of cereal foods. Consequently, the basis for the use of those ANZSIC descriptors to limit the concept of “cereal foods” in the NUW rule has not been made out. Notwithstanding this conclusion it seems to me that the ANZSIC descriptors may yet provide a useful insight into the various elements of cereal food manufacturing in the event that the FWC is required to consider competing union membership claims. I return to this issue later in this decision.

[27] I am also satisfied that the bread and bread type products manufactured by Lifestyle Bakery should be regarded as “grocers’ sundries” on the approach adopted by a Full Bench of the Federal Court in Re Food Preservers Union of Australia v the Manufacturing Grocers’ Employees’ Federation of Australia; Brendan John Eames; Thomas George Gibbs; Alexander Duffew; Monica Mary Gould; Michael Raymond Rice and Kraft Foods Limited (Re Food Preservers) ([1986] FCA 47). In that matter Northrop J stated:

“35. In all the circumstances, the following matters should be considered in determining whether articles, goods or preparations are grocers' sundries. The articles must be pre-packed for retail sale and must have been so pre-packed before delivery to the retail Grocer. The nature of the container is immaterial, the important fact being that the contents are suitable for human consumption. The containers should be small enough for home use and normally sold by a retail Grocer. Having regard to changes in the retail structure at the present time the sales can take place in Grocers' shops, supermarkets or smaller stores. The range of the contents of the containers is in reality unlimited, but some limitation must be placed on the extent to which the manufacturing aspect may be traced. Thus, in the manufacture of canned meats, the eligibility rule would not extend to meat works where animals are slaughtered; in the manufacture of jams, the eligibility rule would not extend to sugar refineries on the basis that sugar forms a large proportion of the material used in the manufacture of jams; in the manufacture of flour or self-raising flour, the eligibility rule would not extend to flour mills. In the present case, it is not necessary to denote the limits of paragraph (e) of the eligibility rule of the Federation since the manufacture of the preparations in dispute and the preparing for sale of the preparations in dispute are all done at the final stage before sale to a wholesale or retail outlet or direct to the user.

36. Having given a description of what type of goods come within the concept of grocers' sundries, it becomes necessary to construe the eligibility rule of the Federation and in particular, paragraph (e) thereof. It is apparent that the draftsman of the whole of the rule was a Union official more familiar with the practical affairs of industry than with the niceties or subtle nuances of language. He was aware of what was in the eligibility rule immediately prior to the alterations made in September 1915. He must have been aware of the terms of the appointment of the Grocers' Sundries Board in 1911 to determine "the lowest prices or rates which may be paid to any person ... employed in the process, trade or business of manufacturing (except in flour mills) cereal foods, condiments, spices, coffee, chicory or cocoa". He must have been aware that articles, goods and preparations usually or commonly known as grocers' sundries covered the wide range of articles already discussed and, provided they were supplied to retail Grocers in a pre-packed form ready for sale to the public, articles comprising cereal foods, condiments and spices were known as grocers' sundries. He must have known that with the possible exception of borax and sulphur, all the preparations listed in paragraph (e) of the eligibility rule immediately before its alteration in September 1915 were articles, goods or preparations which, if pre-packed for retail sale, were usually or commonly known as grocers' sundries. He should have known that condiments, cereal foods and spices were words of general description which included many of the particular preparations listed in the then existing paragraph (e) of the eligibility rule. He must have known that spices, chicory, cocoa and coffee were already listed in the existing paragraph (e). He must have intended to ensure that the existing coverage be retained, but should be extended to cover all articles, goods and preparations usually or commonly known as grocers' sundries. The extension was meant to cover the pre-packing for retail sale. In all those circumstances, in the absence of legal skills in drafting, he adopted the rather clumsy form set out in paragraph (e) and the concluding words of the eligibility rule. Condiments and cereal foods had to be included because of the presence of those words in the appointment of the Grocers' Sundries Board. There was no need to include spices, chicory, cocoa or coffee since they were already in paragraph (e), but all items then in paragraph (e) had to be included as well, irrespective of whether they were pre-packed and thus grocers' sundries.

37. Counsel for the Union contended that the form of the opening words of paragraph (e) showed that the use of the words "and all other articles etc." after the words "condiments and cereal foods" should be read ejusdem generis with condiments and cereal foods. That contention is rejected. It can be conceded that the comma appearing after the word "foods" can be disregarded; compare Coward v. Allen [1984] FCA 53; (1984) 52 ALR 320 per Northrop J. at p 330 and the authorities cited therein. Nevertheless, there is no thread common to the words "condiments and cereal foods". They are generic words covering a multitude of different articles, goods or preparations. A grocer's sundry must be a pre-packed article ready for sale to the public. Grocers' sundries are not limited to articles, goods or preparations being condiments or cereal foods. On its proper construction, the words "and all other articles etc." are words of extension, there being no warrant to apply them ejusdem generis with the particular words of general description preceding them. Further, the use of the word "including" after the words "Grocers' sundries" has the effect of keeping within paragraph (e) and thus the eligibility rule of the Federation, all the goods, articles and preparations thereafter listed irrespective of whether they are grocers' sundries or not.

38. It follows, that if the relevant goods, articles or preparations manufactured or prepared for sale by Kraft are articles, goods or preparations usually or commonly known as grocers' sundries or are similar or allied preparations, goods or articles to any of them, the Federation has the ability to enrol as members persons employed by Kraft in any capacity in their manufacture or preparation for sale. In those circumstances, it is not necessary to determine whether those relevant goods came within any one or more of the particular articles, goods or preparations specified in paragraph (e). It is proposed therefore to consider the primary question by reference to each of the six relevant departments of Kraft.”⁵

[28] The evidence of Mr Horrocks was to the effect that all the Lifestyle Bakery employees were involved in either manufacturing, packing or baking functions and that the bread and bread type products were primarily produced for sale in supermarkets. 6 I have concluded that the bread or bread type products were pre-packed for retail sale and that, by definition they are for human consumption. On the information before me I have concluded that the packaged bread products are directed at home consumption and that the Lifestyle Bakery facility cannot be regarded as involving the manufacture of flour or like products, which on the approach set out by Northrop J, would be excluded from the application of the NUW rules. I consider that this conclusion is consistent with the position adopted by a Full Bench of the Australian Industrial Relations Commission in Food Preservers Union and the Manufacturing Grocers’ Employees’ Federation of Australia7 where the Full Bench adopted the decision in Re Food Preservers and stated:

“Without limiting the content of the judgment of Northrop J we would ask in the context of the foods the subject of the present appeal, first: what is the particular item? Secondly, is it of a kind which is usually presented for sale in a grocer's shop or supermarket? Thirdly, is it a grocers' sundry in the sense that the phrase was used in its original commercial context.”

[29] Consequently, I consider that the NUW rule 5(G)(i)(e) provides the capacity for the NUW to enrol as members, employees of Lifestyle Bakery directly engaged in the manufacture of bread and bread type products.

[30] I have considered whether that rule is restricted by other elements of the NUW rules and/or undertakings provided by the NUW in the past. I have had particular regard to the extent to which NUW rule 5 (HA) should be taken as a limitation on the application of rule 5(G)(i)(e). That rule states:

“(HA) In the State of New South Wales the Union shall also consist of persons who are employed or competent to be employed in the pastrycooking or biscuit making industry, or the manufacture of any goods of which flour or sugar forms a part.”

[31] I have concluded that this provision came into being as a consequence of amalgamations between the NUW New South Wales Branch and the Pastry Cooks Employees’, Biscuit Makers Employees’ and Flour and Sugar Goods Workers’ Union of New South Wales in the early 1990s. Those amalgamations prompted a number of objections from other unions but rule changes to accommodate them were ultimately accepted by the Australia Industrial Relations Commission in 1996. 8

[32] I have considered whether rule 5(HA) should be taken to be a limitation on the capacity of the NUW to enrol as members, persons who are employed or competent to be employed in the pastry cooking or biscuit-making industry, or the manufacture of any goods of which flour or sugar form any part outside of New South Wales. Particularly pertinent to this issue is the Memorandum of Agreement which I provided to the parties on 26 June 2015. That Memorandum was provided to the Australian Industrial Relations Commission by the NUW on the basis that it reflected the full settlement of the objections to the NUW rules which were ultimately adopted on 15 April 1996 in Print N0733. The Memorandum of Agreement signed by the General Secretary of the NUW and the Joint National Secretary of the then Australian Liquor, Hospitality and Miscellaneous Workers Union in February and March 1996 refers to pastry cooking and biscuit making which I see as different to bread making.

[33] Even more significantly, there is no information before me which indicates whether subsequent arrangements have been agreed. Both the NUW and Lifestyle Bakery were given the opportunity to address this matter. Lifestyle Bakery asserted that the undertaking lent support to the proposition that rule 5(HA) established a broader membership prescription in New South Wales than that which applied elsewhere in Australia. The NUW position is that it is not relying upon rule 5(HA) as the basis for its capacity to represent these employees but rather, on the provisions of rule 5(G)(i)(e) which already provided the capacity for that coverage.

[34] In this particular matter there is no suggestion that there is another union such as United Voice which is representing employees of Lifestyle Bakery. Were that to be the case, a dispute over coverage issues might be referred to the FWC pursuant to the provisions of the Fair Work (Registered Organisations) Act 2009. In that event, it may well be that the Memorandum of Agreement becomes a particularly pertinent document. However, I am unable to regard that Memorandum as a definitive limitation on the coverage of the NUW rules. Indeed, it appears to me that the Memorandum is premised on recognition that the NUW rules provide for very broad coverage provisions. As a consequence, I have concluded that the provisions of rule 5(HA) must be taken to reflect the amalgamations that occurred in the 1990’s and cannot be interpreted such that there is an inherent limitation on the application of the pre-existing rule 5(G)(i)(e).

[35] Consequently, I have concluded that the NUW is able to represent the industrial interests of employees, engaged as bakers and process workers employed by Lifestyle Bakery. It follows that NUW permit holders are able to access the Lifestyle Bakery premises consistent with the entry rights and obligations established under Part 3-4 of the FW Act.

[36] I note that the NUW provided an undertaking in the course of these proceedings such that those entry rights would not be exercised on more than a weekly basis. Given the conclusions I have reached in relation to the capacity of the NUW to exercise those entry rights I have not issued an Order in the terms sought by the NUW. Should the NUW advise that it seeks such an Order, I am prepared to consider such an Order but I would then propose to invite both parties to then consider the frequency of visits in the context of the provisions of Part 3-4 of the FW Act. In the event that Lifestyle Bakery has concerns over the frequency of visits, an application pursuant to s.505A may need to be considered.

The majority support determination.

[37] The NUW has sought a majority support determination to the effect that a majority of the employees engaged in food manufacturing at the Lifestyle Bakery facility wish to bargain for an agreement.

[38] 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.”

[39] I am not satisfied that the petition signed by various employees of Lifestyle Bakery establishes that a majority of the employees engaged in food manufacturing wish to bargain for an agreement. I have reached this conclusion because of my concern over language difficulties in terms of communication with the employees. I am not satisfied that the employees all understood what it was they were being invited to sign. This does not represent a specific criticism of the NUW but simply reflects the communication difficulties that became apparent in the course of the proceedings on 26 June 2015. Section 237(3) provides the FWC with the capacity to utilise any method it considers appropriate to determine whether a majority of the employees want to bargain. I propose to request the Australian Electoral Commission to conduct a secret ballot of employees to determine this issue. That ballot will take into account the diverse language and communication issues impacting on Lifestyle Bakery employees. Directions relative to the conduct of that ballot will be issued.

[40] I propose that the ballot include the entirety of the employees engaged in food manufacturing work at Lifestyle Bakery. It will exclude managerial, supervisory and administrative personnel. I am satisfied, for the purposes of s.237(2)(c) that the group of employees is fairly chosen in that it is geographically, operationally and organisationally distinct.

[41] I am similarly satisfied that Lifestyle Bakery has not yet agreed to bargain for the purposes of s.237(2)(b).

[42] A conclusion relative to the provisions of s.237(2)(d) will be reached once the result of the secret ballot is confirmed.

Appearances:

E Barrett and P Richardson for the National Union of Workers.

A Duc and J Bradbrook counsel for Lifestyle Bakery Pty Ltd.

Hearing details:

2015.

Adelaide:

June 16, 26, 29

July 8.

 1   PR568412

 2 [1992] 42 IR 158

 3   Exhibit L1, paras 18 - 23

 4   Memorandum of Agreement, 12 March 1996

5 [1986] FCA 47 (5 March 1986)

 6   Transcript 26 June 2015, 15.01 pm

 7   Print H8531, 14 June 1989

 8   See Print N0733

Printed by authority of the Commonwealth Government Printer

<Price code C, PR569332>