National Union of Workers v Stay in Bed Milk and Bread Pty Ltd T/A Aussie Farmers Direct

[2013] FWC 4054

[2013] FWC 4054

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

National Union of Workers
v
Stay in Bed Milk and Bread Pty Ltd T/A Aussie Farmers Direct
(B2013/940)

COMMISSIONER GREGORY MELBOURNE, 24 JUNE 2013

[1] This matter concerns an application by the National Union of Workers (the Applicant) pursuant to s.236 of the Fair Work Act 2009 (the Act) for a majority support determination. It concerns employees of Stay in Bed Milk and Bread Pty Ltd T/A Aussie Farmers Direct (the Respondent) employed in its production facility at Camperdown in Victoria. Mr A. Portelli from the NUW appeared on behalf of the Applicant. Mr D. Proietto from Lander and Rogers was granted leave to appear on behalf of the Respondent pursuant to s.596 of the Act on the basis his involvement would enable the matter to be dealt with more effectively, given the complexity of the matters, and also assist given the ability of the Respondent to otherwise be able to represent itself effectively.

[2] During the proceedings evidence contained in a witness statement provided by the Respondent’s People and Organisational Capability Manager, Sarah Lanskey, tendered as Exhibit P1, indicated that on 24 June the current employer named in the application will no longer be the employer of the relevant employees, and that employing entity will instead become Aussie Farmers Dairy Pty Ltd.

[3] Section 236(2)(a) of the Act requires an application for a majority support determination must specify:

“(a) the employer, or employers, that will be covered by the agreement”

[4] The change in employing entity also calls into question whether the Commission can be satisfied, as it must, about the matters contained in s.237 of the Act, given the relevant employees are not going to be able to be covered by an agreement with the existing employer.

[5] Having considered the evidence and submissions I am accordingly satisfied the appropriate course is for the application to be dismissed at this time. The Applicant is obviously at liberty to bring a fresh application in the future, if it chooses, that reflects the changed circumstances referred to.

[6] Whilst it is not necessary to make a finding on these matters at this point, given the decision I have come to, I also note the Applicant’s submissions and evidence appeared to indicate it was able to satisfy the other matters I must have regard to in granting an application for a majority support determination, and that those matters were not contested by the Respondent.

COMMISSIONER

Appearances:

A. Portelli of the National Union of Workers on behalf of the Applicant.

D. Proietto of Lander and Rodgers on behalf of the Respondent.

Hearing details:

2013.

Melbourne:

21 June.

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