United Workers' Union v Padre Coffee - [2024] FWC 2394

[2024] FWC 2394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236 - Application for a majority support determination

United Workers' Union
v

Padre Coffee

(B2024/975)

COMMISSIONER CONNOLLY

MELBOURNE, 4 SEPTEMBER 2024

Application for a majority support determination – application granted

On 31 July 2024, the United Workers Union (UWU) applied for a majority support determination under s.236 of the Fair Work Act 2009 (Cth) (the Act). The UWU contends that a majority of relevant employees who would be covered by a proposed enterprise agreement want to bargain with their employer, Origin People Pty Ltd (trading as Padre Coffee, the Respondent).

The agreement is proposed to cover employees of the Respondent who are employed in coffee production, covered by the Food, Beverage and Tobacco Manufacturing Award 2020 who perform work at Padre Coffee HQ, 423 Lygon Street, Brunswick East, Victoria.

Attached to the UWU’s application was a copy of an email from Ms Ava Baldwin to Origin’s People and Culture Business Partner, that said:

“…we in Production are keen to collaborate on an agreement that accurately encapsulates our value within Padre.

Please find attached a Majority Support Petition, signed by all of us in the team. As per this document, we are represented by the United Workers’ Union.”

Also attached was a copy a UWU branded Petition in Support of Bargaining for an Enterprise Agreement, expressing a request to bargain for an Enterprise Agreement to cover production employees who perform work at Padre HQ, 423 Lygon Street, Brunswick East Victoria. The petition was signed by 9 employees.

On receipt of the application, I directed the Respondent to provide my Chambers with a list (redacted as necessary) of employees who would be covered by the proposed Agreement to enable the Commission to determine if there is a majority, along with any other submissions or material relevant to the Application. The Applicant was also invited to provide any additional information as considered necessary. The parties were also directed to attend a conference on 21 August 2024 to discuss programming the application for determination.

The Applicant provided a witness statement of Ms Ava Baldwin, setting out the process undertaken to gather the 9 signatures of her co-workers on the UWU petition. The Respondent subsequently provided a list of its employees who would be covered by the proposed agreement. The employers list only included the 9 names on the UWU petition.

Considering the material provided to the Commission, I sought the views of the parties on there being any objections to the Commission determining the application on the papers, without need for a hearing. The Applicant concurred with this approach. The Respondent indicated its preference was to not bargain and deal with its employees directly but did not otherwise object to the application being determined on the papers.

In these circumstances, the Respondent’s preference is not relevant to what is required to be considered by the Commission on receipt of an application for a majority support determination. Accordingly, I have determined to consider the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWC 2394
Decision Date: 4 SEPTEMBER 2024

CaseChat Overview and Summary

The United Workers Union (UWU) applied for a majority support determination under section 236 of the Fair Work Act 2009 (Cth) in relation to a proposed enterprise agreement with Padre Coffee, which is operated by Origin People Pty Ltd. The UWU claimed that a majority of employees involved in coffee production at Padre Coffee's headquarters in Brunswick East, Victoria, wished to negotiate an enterprise agreement. This application followed a petition signed by nine employees, requesting that the UWU represent them in bargaining for an agreement. The proposed agreement would cover employees under the Food, Beverage and Tobacco Manufacturing Award 2020.

The key legal issues the Fair Work Commission had to decide were whether a majority of the employees who would be covered by the proposed agreement wanted to bargain, whether the employer had agreed to bargain or initiated bargaining, and if the group of employees was fairly chosen. The Commission also needed to determine if it was reasonable to make the determination in all circumstances. The Commission assessed these issues based on the petition submitted by the UWU and the employer's list of employees covered by the proposed agreement. The UWU argued that the petition was a valid representation of the employees' wishes, while the employer expressed a preference to deal directly with its employees.

The Commission found that the UWU had presented a signed petition with the signatures of nine employees, who were all part of the nine employees listed by the employer as being covered by the proposed agreement. The Commission determined that the UWU was a legitimate bargaining representative and that the petition sufficiently demonstrated the employees' desire to bargain. The employer had not agreed to bargain or initiated bargaining, and the group of employees was geographically and organisationally distinct, meeting the requirements of the Act. The Commission concluded that it was reasonable to make the determination based on the current material available, which included the UWU's petition dated 12 July 2024.

The Commission granted the application for a majority support determination, finding that the requirements of section 237(2) of the Act were met. The determination was made based on the petition submitted by the UWU, with the date of 12 July 2024 being the last day an employee's signature was collected on the petition. The decision was issued separately as [PR778954].

Orders