United Workers' Union v Padre Coffee
[2024] FWC 2394
•4 SEPTEMBER 2024
| [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 application on the material provided to the Commission as follows.
Statutory Framework
Section 237 of the Act provides that the FWC must make a majority support determination in relation to a proposed single enterprise agreement if an application has been made under s.236, and where the Commission is satisfied of the matters in s.237(2). The section provides:
“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 to be 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.”
In relation to s.237(2)(a), the Commission may determine whether a majority of employees want to bargain by using any method it considers appropriate (per s.237(3)).
If the proposed agreement will not cover all the employees of the employer or employers covered by the agreement, the Commission must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is ‘geographically, operationally or organisationally distinct’ (per s.237(3A)).
The material before the Commission includes the Form F30 – Application for a majority support determination filed by the UWU. Considering this material, I am satisfised the UWU is a bargaining representative of the employees in question and is entitled under its registered rules to represent their industrial interests. The application specifies the employer and employees who will be covered by the Agreement, and I am satisfied it meets the requirements of s.236 of the Act.
Attached to its application, the UWU has presented a signed petition of a majority of employees seeking to be covered by the Agreement. Material provided from the employer to the Commission confirms that of the 9 signatories to the UWU petition all 9 are amongst the 9 employees who their records indicate would be covered by the Agreement. Therefore, I am satisfied that the requirements of s.237(2)(a) have been met.
With respect to the requirement in s.237(2)(b), it is not in contest and I am satisfied that the Respondent has not yet agreed to bargain with the UWU or otherwise initiated bargaining for the Agreement.
With respect to the requirement in s.237(2)(c), the group of employees chosen are the production employees of the Respondent. The evidence presented by the parties is that this group are the only employees of the Respondent performing this work at the workplace identified. On this basis, I am satisfied the group is geographically and organisationally distinct and has been fairly chosen.
It is not suggested that, there being majority support, it is unreasonable to make the order sought. I am satisfied that this is the case, and that it is reasonable in all the circumstance of this case to make the order as required by s.237(2)(d).
The only remaining issue to determine is the date for the purposes of s.237(2)(a)(i). The Full Bench in Kantfield Pty Ltd v AWU[2016] FWCFB 8372 (Kantfield) at [35] said as follows:
“The power to apply a time-based limitation is confined to section 237(2)(a)(i) and not section 237(2)(a) more broadly. That is, the power to apply a point-in-time limitation in section 237(2)(a)(i) is directed to fixing the time at which the FWC is to determine who are the persons employed only. Therefore, it does not confer a broader power to ‘fix” historical or future points in time for other aspects of 237.”
It is also clear from Kantfield at [37] that the decision should be made based on the most current material available to the Commission. In this instance, that material is contained in the UWU’s petition as submitted and attached to the Form F30, that the last signature was collected on 12 July 2024.
On this basis, I determine the date for the purposes of s.237(2)(a)(i) to be 12 July 2024, being the last day on which an employee’s signature was placed on the UWU petition.[1]
Conclusion
I am satisfied that the requirements of s.237(2) have been met, and having determined the date for the purposes of s.237(2)(a)(i) is 12 July 2024, I am required by s.237(1) to make a majority support determination. The determination is issued separately in [PR778954].
COMMISSIONER
[1] See also AWU v Woodside Energy Ltd[2023] FWC 249 at [345].
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