National Union of Workers v Spring Gully Foods Pty Ltd

[2016] FWC 9109

[2016] FWC 9109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

National Union of Workers
v
Spring Gully Foods Pty Ltd
(B2016/1301)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 DECEMBER 2016

Application for a majority support determination.

[1] On 12 December 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 Spring Gully Foods Pty Ltd.

[2] The NUW has sought the MSD be made by the Fair Work Commission in respect of packaging, cooking and processing workers employed by Spring Gully Foods at the facility located at 184 Cavan Road, Dry Creek, SA, 5094.

[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

(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.”

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

We, the below signed employees of Spring Gully Foods Pty Ltd (“the Company”) want to bargain with the Company for an Enterprise Agreement covering packaging, cooking and processing employees at the Company’s site at Spring Gully Foods, 184 Cavan Road, Dry Creek South Australia, 5094.

[5] Spring Gully Foods provided to the Commission a staff list, including directors and managers, and identified on the list the staff were currently covered by the Food, Beverage and Tobacco Manufacturing Award 2010 and who would be covered by an enterprise agreement (the Relevant Employees).

[6] I have compared the list of names on the NUW petition against the staff list of Spring Gull Foods and I am satisfied that only Relevant Employees of Spring Gully Foods have signed the petition.

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

[8] At the hearing, Spring Gully Foods submitted that the employees had changed their minds about wanting to commence bargaining because things had changed. No evidence was called to support this proposition, despite the managing director being present for the hearing. In the absence of evidence, I am not prepared to doubt the veracity of the petition.

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

[10] 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.

[11] A determination 1 to that effect will be issued with this decision.

[12] A confidentiality order 2 will be issued with respect to the staff list and the petition.

DEPUTY PRESIDENT

Appearances:

A. Portelli for the Applicant.

V. Hinton for the Respondent.

Hearing details:

2016.

Melbourne and Adelaide, by video:

14 December.

 1   PR588684

 2   PR588752

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