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

[2019] FWC 4157

[2019] FWC 4157

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
(B2019/184)

DEPUTY PRESIDENT BEAUMONT PERTH, 24 JUNE 2019

Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – s 236 Majority Support Determination - AEC to conduct Ballot of employees.

[1] On 5 March 2019, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) pursuant to s 236 of the Fair Work Act 2009 (the Act), applied for a majority support determination and named Fredon (WA) Electrical Pty Limited (Fredon) as the employer. The CEPU’s application stated it was seeking to enter into enterprise agreement negotiations with the employer to cover all electrical workers employed by the employer in construction in Western Australia. The majority support determination was sought on the basis that the employer had declined to enter into negotiations concerning an enterprise agreement despite several requests made by the CEPU.

[2] The CEPU relied upon a petition which it said indicated that the majority of employees who would be covered by a proposed enterprise agreement had indicated their support to commence bargaining. There were 21 signatures on the petition. Employees chosen by the CEPU to be covered by a proposed agreement were said to be operationally distinct from other employees engaged by Fredon. The CEPU produced to the Commission signatures of the employees who it said were desirous of entering into enterprise agreement negotiations. The names of those employees, at this stage, remain confidential.

[3] Fredon opposed the majority support determination on the basis that it had conducted its own ballot between 13 March 2019 and 15 March 2019. The ballot was said to have indicated that only seven employees out of 44 who would be covered by any enterprise agreement, and who voted, wished to enter negotiations for an enterprise agreement.

[4] Fredon explained that its workforce was divided into three departments namely, Construction, the Client Service Group (CSG), and Service. It defined the Construction department as ‘any completely new build, and not covering refurbishments nor infrastructure upgrades’. 1 Fredon submitted that employees engaged in the CSG and Service departments worked in the Construction department and therefore would be covered by any enterprise agreement covering its Construction department. Its ballot therefore extended to those employees.

[5] A conference was held on 18 March 2019 to ascertain the actual differences between the parties. The CEPU stated that they believed they still had majority support from employees to enter into enterprise agreement negotiations on the basis that the Construction department was a distinct department and it had balloted employees within this department. Fredon strongly denied that this was the relevant group of employees, and that it had balloted a fairly chosen group.

[6] On the basis there was a dispute about the genuineness of the current position of employees in respect to whether they wished to commence enterprise agreement negotiations, it was agreed by the parties that a separate exercise to ascertain the views of employees should be carried out independently and on a basis which did not identify the views of individual employees. The parties agreed that the Australian Electoral Commission (AEC) would be the most appropriate body to conduct this exercise. Further the parties reached an agreed position regarding the list of employees to be balloted.

[7] It was further agreed between the parties that the question to be put to employees should be in the following terms:

Do you wish to bargain with your employer for an enterprise agreement in WA under the provisions of the Fair Work Act 2009?

[ ] Yes    [ ] No

[8] The AEC communicated to the parties that it could only conduct a postal ballot or an attendance ballot. Dissatisfied with these options, the parties decided to engage an independent company to conduct an online ballot; the results of which were provided to the Commission.

Consideration

[9] The CEPU’s application for a majority support determination meets the requirements of s 236. It is an application by a bargaining representative of employees who will be covered by a proposed single enterprise agreement. There was no dispute that the union represents members at the site, and that its registered rules entitle it to represent the industrial interests of employees of the kind who would be covered by the proposed agreement. 2

[10] In relation to s 237(2)(a), the Commission must consider whether a majority of the relevant employees employed by the Company at a particular time, and who will be covered by the agreement, want to bargain. The time that I have determined for the purposes of s 237(2)(a)(i) is 13 June 2019, being the date on which the independent ballot was conducted.

[11] In relation to the question of the method that should be used in establishing whether a majority of employees want to bargain, I am satisfied that the use of the independent company selected by the parties to conduct the ballot was an appropriate method. The parties, after all, have agreed to this.

[12] Having considered the ballot results provided by the independent company, I am satisfied that a majority of employees, employed on 13 June 2019, and who will be covered by the proposed agreement, wish to bargain.

[13] I am satisfied of the matters set out in s 237(2)(b), (c) and (d). First, Fredon has confirmed that it has not yet agreed to bargain. Second, I am satisfied that the group of employees who will be covered by the agreement was fairly chosen. In reaching this conclusion, I have taken into account whether the group is geographically, operationally or organisationally distinct, as required by s 237(3A).

[14] In my view the group in question, namely, electrical employees employed by Fredon to work in the construction industry in Western Australia, and who otherwise are placed within the business in the Construction department are at least organisationally distinct and operationally distinct. In arriving at this view, I have considered what the Full Bench said in QGC Pty Ltd v Australian Workers’ Union, The. 3 Specifically, the term ‘operational’ refers to an industrial or productive activity, and ‘organisation’ refers to the manner in which the employer has organised its enterprise in order to conduct those operations.

[15] Thirdly, I am satisfied that it is reasonable in all the circumstances to make the determination. No contention to the contrary was raised by Fredon, nor can I identify any basis for such a contention in the materials before me.

[16] As I am satisfied of the matters set out in s 237, I must make a majority support determination in accordance with s 237(1).

[17] A determination is issued concurrently with this decision. 4

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR709382>

 1   Submissions by the Respondent regarding the relevant group of employees to be balloted under s 237(2)(a), [7].

 2   ResMed Limited v AMWU[2014] FWCFB 2418.

 3   [2017] FWCFB 1165.

 4   PR709645.