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

[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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Court was an application by the National Union of Workers seeking a majority support determination for its members who are employees of Stay in Bed Milk and Bread Pty Ltd T/A Aussie Farmers Direct, a company with a production facility in Camperdown, Victoria. The Applicant argued that it had majority support from the employees, necessary for the union to be registered under the Fair Work Act 2009. The Respondent contested the application, asserting that the union did not have the requisite majority support.

The primary legal issue was whether the Applicant had established that it had the majority support of the employees in the relevant bargaining unit, as required by section 176 of the Fair Work Act 2009. The Court had to consider the evidence provided by both parties, including the number of employees who had signed membership forms and whether those forms constituted valid evidence of support. The Court also needed to assess the validity and admissibility of the evidence, including whether there had been any coercion or improper conduct influencing the employees to sign the forms.

The Court examined the evidence presented by both parties and found that the Applicant had not demonstrated majority support among the employees. The Court concluded that many of the membership forms were invalid due to issues such as incompleteness, lack of clarity, or evidence of coercion. The Court held that the Applicant had not met the threshold required by the Act to establish that it had majority support of the employees. Consequently, the application for a majority support determination was dismissed. The Court ordered that the application be dismissed with no order as to costs.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established