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[41]
[2026] FWC 340
General information, not legal advice.
Fair Work Commission
2026-02-05
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 5 February 2026.
s.236 - Application for a majority support determination
Application for a majority support determination - application granted.
[1] The United Workers Union (UWU) has applied under s 236 of the Fair Work Act 2009 (the Act) for a majority support determination to enable bargaining to commence with Tribe Brewing Partner Pty Ltd (Tribe) towards an enterprise agreement. Tribe opposes the application.
[2] The UWU proposes that Tribe bargain for an enterprise agreement to cover employees engaged at Tribe's Goulburn operations who are engaged in production, quality assurance, trades and logistics. The work was described as blue-collar work. The scope for the agreement that is proposed does not include employees who are engaged in a non-operational capacity, including managerial and/or administrative roles, or who otherwise do not perform work at the Goulburn Site. Tribe is a brewing company which operates a central production and logistics hub at the Goulburn Site, for the brewing, packaging, and processing of alcoholic and non-alcoholic beverages.
[3] The employees are not currently covered by an enterprise agreement. The employees are currently employed under either the Food, Beverage and Tobacco Manufacturing Award 2010 or the Manufacturing and Associated Industries and Occupations Award 2020.
[4] The UWU is a bargaining representative for the relevant employees.
[5] Section 237 of the Act requires that I must make the majority support determination if satisfied that a majority of employees who are employed by Tribe who will be covered by the proposed agreement want to bargain, Tribe has not yet agreed to bargain, the group of employees who will be covered by the agreement was fairly chosen, and it is reasonable to make the determination. I note that there is no contest that the Tribe has not yet agreed to bargain, and that the group of employees who will be covered by the agreement was fairly chosen. I am satisfied that these requirements are met.
[6] At a conference conducted on 23 January 2026 the UWU provided the Commission with an unredacted copy of a petition of employees with 41 signatures. Tribe provided the Commission with a list of all current employees, being a list of 85 employees. The Commission compared the two lists and formed the view that 56 employees were within the scope of the proposed agreement. Of those 40 had signed the petition.
We, the below signed employees of Tribe Breweries, Goulburn want to bargain with our employer, the Company, for an Enterprise Agreement covering employees engaged in production, quality assurance, trades and logistics assurance at 2 Ducks Lane Goulburn in the state of New South Wales.
[8] At the conclusion of the conference Tribe raised two matters. First, a concern that the UWU had not put on evidence establishing that the custody and control of the petition so the Commission could not be satisfied of the bona fides of those signatures. Second, that it wished to put before the Commission material relevant to the question of whether it would be reasonable to make the determination due to its financial position. Directions were issued for the parties to provide evidence and submissions on these two issues.
[9] In support of its application the UWU relies upon a witness statement of Ms Erryn Gayle Cresshull dated 20 January 2026. Ms Cresshull is a UWU official with 13 years of experience, currently serving as a Coordinator for the Food and Beverage Industry across multiple states. She represents employees at Tribe's Goulburn Site. Ms Cresshull attempted to initiate bargaining on 24 November 2025, but Tribe did not agree to commence negotiations. Subsequent attempts to engage Tribe in bargaining were unsuccessful. Following the Respondent's refusal, Ms Cresshull made arrangements to collect signatures in a petition indicating the employees' desire to negotiate an enterprise agreement. Signatures were collected over the period of 5 to 15 December 2025.
[10] Ms Cresshull said she took the following steps to ensure proper custody and control of the petition was maintained:
a) On 5 December 2025 she attended the Goulburn Site, provided employees with copies of the petition, explained the process, and collected completed petitions directly. She retained sole possession of the signed petitions in a secure manner during the visit.
b) After the site visit, Ms Cresshull met with UWU delegate Glenn Taylor and a UWU member from Brewing to provide them with the petition and blank templates. She asked them to:
i. Obtain further signatures from members in their respective sections.
ii. Keep the petition secure and in their possession at all times.
iii. Return the petition to her once all signatures were collected.
d) Ms Cresshull maintained consistent communication with UWU members at the Goulburn Site during the signature collection period. She informed them of who held the petition and how to sign it.
e) Ms Cresshull stated she ensured that the petition was securely kept by herself, Mr. Taylor, and the three UWU members in Brewing, Logistics, and Trades throughout the process.
f) Ms Cresshull received signed petitions via email on 12 December 2025 and a photograph of additional signatures via text message on 17 December 2025.
[11] Ms Cresshull was not required for cross examination.
[12] I am satisfied that the method by which the signatures were collected and the number of signatures on the petition that a majority of employees who are employed by Tribe who will be covered by the proposed agreement want to bargain for an enterprise agreement.
[13] Tribe provided witness statements from Heath Baker, Chief Executive Officer and Hamish McLeod Head of Commercial Finance. Mr Baker's statement outlined the company's financial struggles and recent recovery efforts. Tribe is an independent brewery in Goulburn, NSW, producing various craft beers and offering contract production services. It was founded in 2018. The brewery employs approximately 85 staff. Since its inception, Tribe has faced significant financial difficulties, leading it to enter voluntary administration in February 2023. The business continued to operate under administration while a review was conducted. On June 16, 2023, the Elsie Cameron Foundation (ECF) acquired Tribe Breweries, preventing liquidation and establishing a new ownership structure. Changes were made to the way the company operated including relocating the head office, prioritising contract production, enhancing quality assurance, and focusing on employee engagement and operational efficiency. Mr Baker expressed concerns that bargaining processes could strain operations, diverting resources from production and threatening the business's sustainability.
[14] Mr McLeod's statement gave further details concerning the company's financial hardship and the circumstances following voluntary administration. He said Tribe continues to face significant financial pressures, including ongoing losses, declining sales volumes, increasing costs, and challenges in securing external investment. Since voluntary administration, Tribe has continued to report losses. Although it appears that those losses have abated with estimated loss for the current financial year being far less than previous years. Mr McLeod attributes those losses to changing consumer preferences and fierce competition in the alcohol market. Material costs have also increased due to inflation, with significant price increases from suppliers, particularly for packaging materials. He said overhead costs are heavily impacted by utilities and labor, which together account for 80% of manufacturing and support overheads. Labor costs have also risen above inflation. This has occurred at a time when the liquor sector has seen a downturn, with retail volumes down 3.8% and venue sales down 7% over the past two years. Tribe's contract production sector, which constitutes 96% of sales volume, is said to be currently oversupplied, leading to fierce competition and reduced sales prices.
[15] Tribe submits that it is unreasonable to make a majority support determination given its current financial difficulties. It contends that forcing bargaining could threaten its viability and lead to job losses, contradicting the interests of the employees the union aims to represent. It submits that the bargaining process would impose immediate operational costs, including diverting key personnel from operational activities, reducing production output, and further jeopardizing the company's financial position. It also submits that the outcome of the bargaining, which may lead to a workplace determination should the bargaining prove intractable, may also jeopardise the financial position of the company.
[16] The UWU submits that Tribe's evidence about the financial impact of bargaining does not go so far as to suggest that bargaining would jeopardise the business. Tribe's concerns are described as speculative, particularly regarding the possibility of funding being affected and the belief that managerial involvement in bargaining would reduce productivity. It contends that these arguments are not grounded in evidence and should be rejected.
[17] The union referred to the Full Bench decision in Alcoa of Australia Limited v Construction, Forestry, Mining and Energy Union [2015] FWCFB 1832 in support of the proposition that the making of an MSD does not guarantee the making of an enterprise agreement or specific terms within it. The Full Bench said at [31]:
...The making of a majority support determination does not pre-suppose that an enterprise agreement will be made containing particular terms. It does not pre-suppose that an enterprise agreement will be made at all. To attempt to predict what the outcome of enterprise bargaining might be if a majority support determination is made, and then to have regard to that in deciding whether such a determination would be made, would involve the Commission taking into account an entirely speculative and irrelevant consideration.
[18] Tribe's submission also went to the resources required to engage in bargaining and to the prospect under the current legislative scheme for an intractable bargaining declaration to be made. Such declarations may be made by the Commission under s. 234 where satisfied that the Commission has attempted to resolve a bargaining dispute under s. 240, there is no reasonable prospect of agreement being reached, and it is reasonable to make the declaration. The consequence of an intractable bargaining declaration being made in relation to the agreement is that the Commission may, in certain circumstances, make an intractable bargaining workplace determination under section 269. Intractable bargaining declarations were not a feature of the Act when the Full Bench in Aloa made the observation set out above.
[19] I am not persuaded that the making of the majority support determination sought would be unreasonable in the circumstances.
[20] First, the object of the Act in s. 3 includes to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity through an emphasis on enterprise‑level collective bargaining underpinned by simple good faith bargaining obligations (s. 3(f)). The objects of Part 3-2 of the Act dealing with enterprise agreements include to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits (s171(a)). The purpose of bargaining is to allow parties to tailor the industrial arrangements that apply in their enterprise to their needs including the need to operate productively. In bargaining here, the parties will no doubt have to address the financial situation of the company and accommodate it through productivity measures as contemplated by the objects. This speaks to the making of a determination as being reasonable.
[21] Second, Tribe's concern that the outcome of bargaining may expose them to additional costs is speculative. It may be that bargaining will assist with productivity gains that more than meet those costs. That of course is also speculative. It may be that no agreement is reached. It may be that should the bargaining prove intractable the Commission makes a workplace determination. It may not. If it does Tribe will be able to address the Commission on its capacity to meet any proposed obligations under a workplace determination. Tribe will also be able to seek in those proceedings productivity gains that would offset any increased costs. I consider the Full Bench observation that attempting to predict the outcome of enterprise bargaining if a majority support determination is made, and then to have regard to that in deciding whether such a determination would be made, would involve the Commission taking into account an entirely speculative and irrelevant consideration applies equally to a consideration of what may occur should bargaining be unsuccessful and an intractable bargaining declaration is made.
[22] Third, I do not consider that bargaining would create an impost on the resources of Tribe such that it would be unreasonable for it to engage with its workforce in an attempt to reach agreement. Such engagement may well lead to productivity benefits that improve the financial position of Tribe. This would amount to a beneficial use of the company's resources. This again is speculative and I suspect equally irrelevant. I am in any event not persuaded by it.
[23] Consequently, I am satisfied that it is reasonable to make the determination.
[24] I will grant the application. I am satisfied that a majority of employees who are employed by Tribe who will be covered by the proposed agreement want to bargain. I am also satisfied that Tribe has not yet agreed to bargain. I am further satisfied that the group of employees who will be covered by the agreement, being the blue-collar workforce at Tribe's Goulburn site is operationally and geographically distinct and was fairly chosen. And I am satisfied that it is reasonable to make the determination. As I am satisfied that each of these requirements are met s. 237 of the Act requires that I must make the majority support determination.
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