Australian Nursing and Midwifery Federation

[2015] FWC 8790

[2015] FWC 8790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Australian Nursing and Midwifery Federation
(B2015/1235)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 22 DECEMBER 2015

Ryman Healthcare T/a Weary Dunlop Retirement Village - Jells Road Wheelers Hill - majority support determination - whether evidence sufficient to demonstrate that a majority of eligible employees want to bargain with the employer.

[1] On 26 August 2015 the Australian Nursing and Midwifery Federation (ANMF) lodged an application, pursuant to s.236 of the Fair Work Act 2009 (the Act). It sought a majority support determination with respect to nominated groups of employees within Ryman Healthcare trading as Weary Dunlop Retirement Village - Jells Road Wheelers Hill (the Respondent).

[2] The ANMF requested that the Fair Work Commission (the Commission) make this determination on the basis that the employer had refused to bargain, the identified employees represented a group which were fairly chosen and the ANMF believed the employees that had indicated that they wish to commence bargaining for an enterprise agreement represented the majority of employees who would be covered by the proposed enterprise agreement.

[3] A hearing was conducted on 23 November 2015. A draft order was provided to the Commission by the parties which was subsequently issued 1. The Australian Electoral Commission (AEC) was ordered to conduct a postal ballot of eligible employees of the Respondent to determine whether the majority of these employees wanted to bargain with their employer for a new enterprise agreement.

[4] The ballot closed on 11 December 2015. The AEC declared the results of the ballot it had conducted. Those results indicate that there were 82 persons on the roll of voters, 32 returned declaration envelopes with 22 voting in favour of the following question: "Do you want to bargain for a new Enterprise Agreement with your employer?"

[5] Following the Declaration of Results the Respondents’ representative sent correspondence to the Commission submitting that based on the results the Commission cannot be satisfied that a majority of employees who will be covered by the proposed agreement want to bargain and the application for a majority support determination be dismissed.

[6] The ANMF were given the opportunity to reply to the Respondent’s submission. They advised the Commission that they did not wish to make any further submissions in the matter.

[7] Section 237 of the Act provides that the Commission must make a majority support determination if an application for that determination has been made, and if the Commission is satisfied of the matters set out in subsection (2) 2. That subsection provides:

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

(2) The FWC must be satisfied that:

(a) a majority of the employees:

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

(ii) who will be covered by the agreement;

want to bargain; 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."

[8] In The Australian Workers’ Union v F. Laucke Pty Ltd T/A Laucke Mills 3 the Commission ordered that a ballot be conducted by the AEC to determine if a majority of employees wanted to bargain. Of the 39 employees within the employee group who were eligible to vote, 25 voted. 19 supported the question, 5 voted against and there was 1 vote declared informal. At paragraph 14, the Commission said:

“…whilst a majority of those who had voted were in support of the proposition, the 19 votes in support did not represent a majority of the employee group, by a margin of one vote”.

[9] Accordingly, the Commission dismissed the application because it could not be satisfied that a majority of the employee group wished to bargain.

[10] On the basis of the ballot and other material before me I am not satisfied that a majority of the employees who will be covered by the agreement want to bargain. The requirements of s.237 are not satisfied. The majority support determination application must be dismissed.

[11] An order dismissing the application is contained in PR575244.

DEPUTY PRESIDENT

 1   PR574267

 2  The Australian Workers' Union v The Austral Brick Co Pty Ltd T/A Austral Bricks[2010] FWA 5819, at paragraph 24.

 3   [2013] FWC 4632

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