[2025] FWC 296

Fair Work Act 2009

s.236 - Application for a majority support determination

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Felton Grimwade & Bosistos T/A FGB Natural Products

Application for a majority support determination - determination not issued

• [1] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU or the Applicant) has made an application to the Fair Work Commission (the Commission) pursuant to s.236 of the Fair Work Act 2009 (the Act) for a majority support determination. The application is made in respect to employees of Felton Grimwade & Bosistos T/A FGB Natural Products (FGB or the Respondent) at 61-81 Clarinda Road, Oakleigh South, Victoria 3167. FGB employees are otherwise covered by the Manufacturing and Associated Industries and Occupations Award 2020. The AMWU contends that the group of employees covered by the application are operationally and geographically distinct.

• [2] On 29 November 2024, I convened a conference with the parties, the outcomes were confirmed by an email from my Chambers to the parties that the FGB were to provide a list of employees and this list, plus the AMWU's petition will be confidential and for the Commission only. The AMWU were also directed to provide a copy of the emails they referred to in their application that show FGB has not yet agreed to bargain.

• [3] During the conference the employees eligible to be covered and therefore the group that is to be included in the employer's list for comparison to the petition was confirmed as employees employed in Production, Warehouse and Compounding. This does not include supervisors and managers.

Procedural Background, Submissions and Evidence

• [4] The AMWU is a default bargaining representative in respect to its members who would be covered by an agreement. It is not contested that its rules entitle them to represent the industrial interests of those employees it seeks to cover by an enterprise agreement.

• [5] The AMWU submitted that there were approximately 20 employees who were and would be covered by the proposed agreement, and submitted a petition signed by 11 employees.

• [6] FGB submitted a list of 29 employees on 4 December 2024. For completeness they later included at my direction a signed statement at the bottom of the list confirming the list as of 27 November 2024 provided only contained the list of employees employed in Production, Warehouse and Compounding.

• [7] On 11 December 2024 I advised the parties that "a list of 29 employees was received, and the petition contains 11 signatures that match the employer list. Therefore, there is no clear majority." The parties were then asked to advise if they had any objections to me issuing a decision confirming there is no majority. The AMWU objected as they maintained the list should only contain approximately 20 employees. The AMWU then provided a list of names of employees who fall under the AMWU's coverage. They also filed a Form F52 applying for an order for the production of the employer's list of employees to ensure it only includes employees who fall within the scope of the AMWU's coverage and the employment type of the employees on the list (i.e. not labour hire).

• [8] I convened a Mention/Directions on 13 December 2024 and directed FGB to provide a confidential list of employees and their job titles as at 27 November 2024. After receiving this list on 17 December 2024, I sought further information from FGB and was able to identify the source of the discrepancy between the parties' lists is that the FGB's list includes all employees and leading hands performing duties in production, warehousing and compounding but excludes supervisors and managers. I advised the AMWU of this and noting there was still no majority requested AMWU advise whether they press their application for a majority support determination.

• [9] On 13 January 2025, I received confirmation from the AMWU they accept the results and do not press the application further. Accordingly, I have decided it is appropriate to determine this matter on the papers.

• [10] To make a Majority Support Determination Order, the Commission must be satisfied that s.236 and s.237 of the Act are met. Relevantly s.236 provides:

(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.

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement."

• [11] Section 237 of the Act deals with what the Commission must be satisfied about before a determination is made. Importantly, s.237 (1) states the Commission must make a majority support determination if certain matters are satisfied.[1] Relevantly, s.237 provides:

"When the FWC must make a 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

(i) who are employed by the employer or employers at a time determined by the FWC; 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) 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.

(4) The determination comes into operation on the day on which it is made."

• [12] It is not contested that the Applicant is a bargaining representative, that it made an application, and the Respondent has not yet agreed to bargain, thereby satisfying s.237(1)(a) and s.237(2)(b) of the Act.

• [13] The proposed group of employees to be covered by the agreement are those employed in Production, Warehouse and Compounding at 61-81 Clarinda Road, Oakleigh South, Victoria 3167. This group does not include supervisors and managers, and is geographically and organisationally distinct, therefore s.237(1)(c) of the Act is satisfactorily addressed taking into account s.237(3A) of the Act.

• [14] However, based on the submission of the petition and relevant employee lists, the AMWU has only been able to demonstrate that 11 of 29 employees are in favour of commencing bargaining. This is not a majority.

• [15] Section 237(1) states that the Commission must make a majority support determination if the application is made, and it is satisfied of the matters in subsection (2). On the evidence before me I have considered the comparison of the signatures on the Applicants petition and the Respondent's list of employees and, on that basis, I cannot issue a determination under s.237(1) of the Act as there is no majority support.

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