[2026] FWC 1153

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

Application for a majority support determination - employer does not agree to bargain - whether a majority of employees want to bargain -

[1] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) has made an application under s.236 of the Fair Work Act 2009 (Act) to the Commission seeking a majority support determination (MSD) concerning a group of employees employed by Arnott's Biscuits Ltd trading as Arnott's (Arnott's).

[2] The employees sought to be covered by the MSD are employees of Arnott's who are classified as maintenance workers (i.e. Engineering Technicians) including classifications up to and including team leaders/leading hands (i.e. excluding Maintenance Coordinators and more senior classifications), who perform work at Arnott's manufacturing facility in Marleston, South Australia, and are in classifications not covered by the Arnott's (Marleston Manufacturing) Enterprise Agreement 2022.

[3] Arnott's has not yet agreed to bargain with the AMWU but has recognised the Union's capacity to make this application.

• [4] During preliminary proceedings, the parties sought that the Commission initially deal with whether a majority of the relevant employees want to bargain (s.237(2)(a)) of the Act) - the majority support issue. In that context, the parties agreed to provide material, some on a confidential basis, to inform the Commission in relation to the majority support issue. Arnott's also confirmed that subject to the Commission being satisfied that the majority support requirement had been met, it would not oppose the application.[1]

• [5] The Commission subsequently issued a Report[2] to the parties, which confirmed amongst other matters, that the AMWU's petition it relied upon to demonstrate support for the bargaining, recorded support from a majority of the relevant employees (17 out of 26). Arnott's subsequently confirmed that it did not further oppose the making of the proposed MSD and the parties requested that the Commission determine this matter on the papers.

[6] Sections 236 and 237 of the Act provide as follows:

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to 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.

237 When FWC must make a majority support determination

(1) 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) FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWC must be satisfied before making a majority support determination

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

(ii) who will be covered by the agreement;

(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.

(3) For the purposes of paragraph (2)(a), FWC may work out whether a majority of employees want to bargain using any method FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, 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."

[7] It is evident from the material already before Commission and given the now common position of the parties, all of the requirements for the granting of the application are not in contention and have been fulfilled. That is, the AMWU is a bargaining representative and has made a valid application; the agreement being sought is a single enterprise agreement; Arnott's has not yet agreed to bargain; the group of employees has been fairly chosen; a majority of employees wish to bargain, and it would be reasonable for a determination to be made.

[8] In light of those findings and the results confirmed in the Report, I am satisfied that all of the requirements of s.237(2) of the Act have been met. As a consequence, I am obliged by the legislation to grant the application.

• [9] A Majority Support Determination[3] is being issued in conjunction with this decision.

[1] Confirmed in submissions provided on 24 March 2026.

[3] PR798489.

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