DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(B2015/654)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 17 SEPTEMBER 2015

Application for a majority support determination - Kone Elevators, Warners Bay Site.

[1] On 30 July 2015 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)” (the AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) filed an application pursuant to s.236 of the Fair Work Act 2009 (the Act) for a majority support determination.

[2] The application sought that the determination apply to:

“All employees who are otherwise employed at 226 Macquarie Road, Warners Bay NSW 2282 and will be subject to the proposed collective agreement who are, or eligible to be, members of the CEPU or AMWU.”

[3] The application asserted that the employees to be covered are not currently covered by an enterprise agreement and that the group is fairly chosen as required by s.237(2)(c). It was asserted that the employer, Kone Elevators Pty Ltd (Kone), had refused to commence bargaining.

[4] As a result of a telephone mention on 17 August 2015, directions for filing of submissions and evidence were issued. The matter was set down for hearing on 14 September 2015 in Sydney.

[5] The CEPU was represented by Mr A. McKinnon and the AMWU by Mr J. Lavelle-Wilson. Mr T. Capelin represented Kone, together with Ms R. Doyle. Mr Capelin was granted permission to appear pursuant to s.596.

[6] As well as their written submissions, the CEPU relied on the witness statement of David McKinley, Branch Organiser (Exhibit CEPU 2) and the AMWU relied on the witness statement of Fergal Eiffe, Branch Organiser (Exhibit AMWU 1). Attached to the statements was a petition signed by 14 employees which requested the unions to commence collective bargaining on behalf of Kone employees in the Newcastle and North Coast region and nominating the AMWU/CEPU as their bargaining representatives. A redacted copy was provided to Kone.

[7] Kone relied on its written submission and the witness statement of Mr T. Jackson, the General Manager of its Newcastle and North Coast Region. Attached was a confidential list of some 34 employees of the region. A redacted version was provided to the unions.

[8] None of the witnesses were the subject of substantive cross-examination.

[9] At the hearing, the unions filed an amended application which confined the application as follows:

“All employees who are otherwise engaged at 226 Macquarie Road, Warners Bay NSW 2282 and will be subject to the proposed collective agreement who are, or are eligible to be, members of the CEPU or AMWU – except those employees employed as manager/supervisory/co-ordinator and logistic officer who are not predominantly on the tools.”

[10] The word “engaged”, in the first line was suggested by the Commission to clarify that employees were “based” at the Warners Bay site and visited various clients to install and maintain lifts. They do not “work” at the site all the time. The amendment excludes certain supervisory/coordinator employees from the proposed agreement. The amendment was accepted by Kone.

[11] Mr Capelin made an application that he be able to check the list of names on the petition against the amended employee list, on the basis that he not disclose the names to his client. After discussion in conference, I accepted this application.

[12] The hearing was adjourned so the Commission, Mr Capelin, Mr McKinnon and Mr Lavelle-Wilson could check the petition signatures against the employee list which had been amended as a result of the amended application.

[13] The exercise revealed that 14 out of 27 employees, as defined in the amended application, want to bargain.

[14] Accordingly, Kone did not oppose the application for a majority support determination.

[15] In summary, I am satisfied that the requirements of s.237(2) have been met. I am also satisfied that the petition produced by the CEPU and the AMWU is a bona-fide and appropriate method of determining whether a majority of employees want to bargain, in accordance with s.237(3).

[16] A majority support determination [PR572024] will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

A. McKinnon for the CEPU;

J. Lavelle-Wilson for the AMWU;

T. Capelin, solicitor with R. Doyle for Kone.

Hearing details:

2015

Sydney:

September 14.

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the CEPU for a majority support determination. The dispute was centred around the industrial action taken by employees at the Kone Elevators, Warners Bay site. The Commission was required to determine whether the union had sufficient support from the relevant employees to proceed with the proposed industrial action.

The legal issues before the Commission included whether the union had demonstrated that a majority of the relevant employees supported the industrial action, and whether the process used to ascertain this support was fair and accurate. Additionally, the Commission needed to consider whether the industrial action was protected under the relevant industrial relations laws. The union argued that it had obtained sufficient support from the employees, while the employer contested the validity and process of the union's claim.

The Fair Work Commission found that the union had not provided sufficient evidence to demonstrate that a majority of the relevant employees supported the proposed industrial action. The Commission was not satisfied with the process used by the union to ascertain the level of support, as it found that the method employed was not robust enough to ensure an accurate representation of the employees' views. Consequently, the Commission dismissed the application for a majority support determination. The Commission emphasised the importance of a fair and accurate process in determining the level of support for industrial action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the...

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established