Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2022] FWC 1480

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(B2022/344)

COMMISSIONER WILLIAMS

PERTH, 10 JUNE 2022

Application for a majority support determination

On 21 April 2022 the Electrical Trades Union of Australia (ETU), a division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) made an application to the Fair Work Commission (the Commission) for a majority support determination pursuant to s. 236 of the Fair Work Act 2009 (Cth) (the Act) (the Application). The Application sought a determination in respect of employees employed by S&DH Enterprises Pty Ltd T/A K.J. Johnson & Co Pty Ltd who are covered by the S&DH Enterprises Pty Ltd Agreement.

On 16 May 2022, at a conference of the parties, the Commission advised it proposed comparing the ETU’s petitions signed by employees to a list of relevant employees provided by the employer for the purpose of enabling the Commission to determine whether or not a majority of the relevant employees wanted to bargain for an enterprise agreement with the employer. Both parties agreed to this approach.

The ETU provided the Commission with a number of individually signed petitions which each indicates the employee wants to bargain for an enterprise agreement with the employer.

The employer provided the Commission with a list of names of all the relevant employees, the classifications and other identifying information.

The Commission has carefully examined the petitions provided by the ETU and cross-checked the signatories against the list of relevant employees provided by the employer.

As a result of the comparison, I am satisfied there is a majority of relevant employees who have signed the petitions.

In the circumstances, s. 237(2)(a) of the Act has been met and the application will be granted.

A determination [PR742554] to that effect will now be issued.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, applied for a majority support determination in the Fair Work Commission (FWC). The dispute centred around the union's eligibility to represent employees in enterprise bargaining negotiations. The FWC was tasked with determining whether the union had sufficient support from the relevant employees to act as a bargaining agent.

The legal issues before the FWC included whether the union had collected the requisite number of signed authorisation forms from employees within the bargaining area, and whether these forms were valid and met the statutory requirements. The union argued that it had the necessary majority support, while the respondents contested the validity and sufficiency of the authorisation forms provided. The FWC had to examine the forms, the process by which they were collected, and whether they complied with the relevant provisions of the Fair Work Act.

After thorough examination, the FWC concluded that the union did not have the requisite majority support as the authorisation forms were insufficient in number and did not comply with the legal requirements. The FWC found several irregularities and procedural errors in the collection process, which undermined the validity of the forms. Consequently, the application for a majority support determination was dismissed. The FWC emphasised the importance of strict adherence to the statutory requirements in such applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established