s.236 - Majority support determination

Munro Footwear Group Pty Ltd Trading AS Munro Footwear Group

Application for a majority support determination - Application dismissed

• [1] On 5 September 2022, the United Workers' Union (UWU) made an application pursuant to s.236 of the Fair Work Act 2009 (Cth) (the Act) for a majority support determination.

• [2] The UWU seeks a determination that a majority of Munro Footwear Group Pty Ltd (Munro Footwear) employees who are employed at 6 Founders Place, Truganina, and covered by the Storage Services and Wholesale Award 2020 (Storage Services Award), and engaged in distribution and warehouse functions, but who are not engaged in salaried and management positions, want to bargain with their employer for a proposed agreement. In its application, the UWU outlined that a majority of employees who would be covered by the proposed agreement have signed a petition indicating their support for bargaining. The UWU attached a redacted copy of the petition conducted to the originating application and indicated that an unredacted petition would be provided upon the application being allocated to a Member of the Commission.

• [3] On 26 February 2025, my Associate sent an email requesting, inter alia, that the UWU provide unredacted copies of the petition conducted and that Munro Footwear provide a list of employees who are engaged in distribution and warehouse functions, and whose employment is covered by the Storage Services Award and who are employed at the Treadshed facility at 6 Founders Place, Truganina.

• [4] On 4 March 2025 at 10.48am, my Chambers received an email from Munro Footwear providing a list of the employees who are engaged in distribution and warehouse functions, and whose employment is covered by the Storage Services Award, and who are employed at the Treadshed facility at 6 Founders Place, Truganina.

• [5] Also on 4 March 2025, at 1.02pm, my Chambers received an email from the UWU attaching unredacted copies of the petition and a further 3 signatures said to have been obtained following the filing of the application for my consideration.

• [6] On 1 April 2025, I conducted a Mention at which the material that had been filed and served in the conduct of the application was discussed, and at which I informed the parties:

1. There were 141 employees named on the list of employees provided by Munro Footwear.
2. 57 of those named employees appeared to have signed the original petition.
3. The UWU had submitted 3 further signatures after filing the application that appeared to be those of 3 employees named on the list of employees provided by Munro Footwear.
4. There were also a further 2 names on the petition that did not appear on the list of employees provided by Munro Footwear.

• [7] I suggested to the parties that even if the 5 employees in [6](3) and [6](4) above were added to the 57 employees who had signed the original petition, it did not appear that a majority of employees who will be covered by the proposed agreement wanted to bargain.

• [8] In response, the UWU advised that it would continue to petition the employees and that it would also be amenable to the Commission conducting an attendance vote for the purposes of ascertaining whether a majority of employees who will be covered by the proposed agreement want to bargain.

• [9] Munro Footwear was afforded the opportunity to consider its position in relation to the suggested attendance vote. When subsequently providing its response on 2 April 2025, Munro Footwear advised that it had included in its list of 141 employees a total of 9 team leaders who are covered by the Storage Services Award but paid by way of a salary. In relation to the suggested attendance ballot, Munro Footwear advised that it did not consent, outlining the following:

"...the Applicant has solicited signatures over a lengthy period of time, including following the application being made, and still has not obtained a majority. Some signatures date back to January 2025 and there has been and continues to be significant turnover in the Respondent's business, including the engagement of several tranches of new employees to meet operational demand. Noting the Applicant's indication that it will persist in seeking support at the site, our client considers that there is no guarantee that even with the Applicant's further efforts it would continue to have the level of support demonstrated in the application, let alone increase that support."

• [10] The Respondent also foreshadowed a concern that if the 9 team leaders paid by way of a salary who are covered by the Storage Services Award were excluded, the scope of any proposed agreement would not have been not fairly chosen (see s.237(3A) of the Act).

• [11] The Act relevantly provides as follows:

(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.

237 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) 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), 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] The material before the Commission does not appear to establish that the UWU is a bargaining representative for the employees who will be covered by the proposed single-enterprise agreement. This did not form part of the petition question. Therefore, I am not persuaded that the UWU is capable of making this application for a majority support determination. However, if I am incorrect in relation to this, I can indicate that I am satisfied that the employer, Munro Footwear, and the employees that will be covered by the proposed single-enterprise agreement, have been specified.

• [13] If the list of 141 employees provided by Munro Footwear is amended to remove the 9 team leaders paid by way of a salary who are covered by the Storage Services Award, this suggests that there are 132 employees who are:

1. employed at 6 Founders Place, Truganina; and
2. covered by the Storage Services Award; and
3. engaged in distribution and warehouse functions; and
4. not engaged in salaried and management positions.

• [14] The unredacted copies of the petition provided by the UWU suggest that 57 employees want to bargain but if the 5 employees referred to in [7] above are added, it would appear that 62 of the 132 relevant employees, or approximately 47%, want to bargain. As such, I am not satisfied that a majority of employees employed by Munro Footwear and who will be covered by the proposed single-enterprise agreement want to bargain.

• [15] As my analysis places the UWU's position at its highest, and having noted both the withholding of consent to an attendance vote from Munro Footwear and the UWU's stated intention to continue petitioning the employees irrespective of Munro Footwear's position in relation to an attendance vote, I consider my method of working out whether a majority of employees want to bargain is appropriate (s.237(3) of the Act).

• [16] The material before me satisfies me that at the time of writing, Munro Footwear has not yet agreed to bargain.

• [17] In this application, it has become apparent that the assertion of the UWU that the group of employees has been fairly chosen is contested because Munro Footwear says there are at least 9 team leaders covered by the Storage Services Award, but paid by way of a salary, who would be excluded. However, given my conclusions in relation to s.236 and s.237(2)(a) of the Act, I do not consider it is necessary for the purposes of this application to make a final determination in relation to the s. 237(2)(c) consideration.

• [18] That the requirement outlined in s.237(2)(a) of the Act has not been met on the basis of the material before me leads me to conclude that it would not be reasonable in all the circumstances to make the determination sought.

• [19] For the aforementioned reasons, I am not persuaded the application has been validly made based on the material before the Commission and nor am I satisfied that a majority of employees employed by Munro Footwear, and who will be covered by the proposed single-enterprise agreement, want to bargain and that it is reasonable in all the circumstances to make the determination sought. Accordingly, the application is dismissed.

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