The Fair Work Commission has granted a majority support determination requiring a brewery to commence enterprise bargaining after finding a petition signed by most employees demonstrated clear support for bargaining
The Fair Work Commission has ordered Tribe Brewing Partner Pty Ltd to commence enterprise bargaining following an application by the United Workers Union (UWU) for a majority support determination (MSD) under the Fair Work Act 2009.
A majority support determination allows the Commission to compel an employer to bargain for an enterprise agreement where a majority of employees who would be covered by the agreement want to bargain but the employer has refused.
The UWU sought to bargain for an agreement covering production, quality assurance, trades and logistics employees at the company’s Goulburn brewery. These employees were not covered by an enterprise agreement and were instead employed under relevant modern awards.
To demonstrate majority support, the union relied on a petition signed by employees indicating their desire to bargain for an enterprise agreement.
The Commission compared the petition against the company’s employee list and found:
- 56 employees were within the scope of the proposed agreement; and
- 40 of those employees had signed the petition indicating they wished to bargain.
The employer did not dispute that it had declined to bargain or that the proposed coverage of the agreement was appropriate. However, it raised concerns about the validity of the petition and whether it would be reasonable to require bargaining given the company’s financial circumstances.
Decision / Outcome
Deputy President Slevin found that the union had established that a majority of employees wanted to bargain.
The Commission accepted evidence from a UWU official about how the petition had been circulated and controlled. Signatures were collected over a ten-day period and the union took steps to ensure the petition remained in the custody of union representatives or delegates during the process.
The Commission was satisfied that the petition was genuine and that the signatures accurately reflected employee support for bargaining.
The employer also argued that bargaining would be unreasonable due to its ongoing financial challenges, including:
- a recent period of voluntary administration,
- continuing operating losses,
- declining sales volumes, and
- rising input and labour costs.
However, the Commission rejected these arguments.
The decision emphasised that requiring an employer to bargain does not guarantee that an enterprise agreement will ultimately be reached, nor does it predetermine the terms of any agreement. Predicting the outcome of bargaining or potential future costs was considered speculative and therefore not relevant to whether a majority support determination should be made.
The Commission also observed that collective bargaining is a central feature of the Fair Work Act and may itself lead to productivity improvements that address business challenges.
As the statutory requirements were met, the Commission was required to grant the application and make the majority support determination.
Key Takeaways for Employers
- Majority support can be shown without a ballot. A petition or other reliable evidence demonstrating majority employee support may be sufficient.
- Employers cannot simply refuse to bargain. If a majority of employees want to bargain, the Commission can compel the employer to commence enterprise bargaining.
- Financial difficulty alone is unlikely to prevent a determination. The Commission will generally regard predictions about the costs or outcomes of bargaining as speculative.
- Majority support determinations do not guarantee an agreement. They simply require the parties to begin bargaining in good faith.
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