Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Dorma Australia Pty Ltd

[2015] FWC 127

[2015] FWC 127

FAIR WORK COMMISSION

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
v
DORMA Australia Pty Ltd
(B2014/1628)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 8 JANUARY 2015

Majority support determination - secret ballot - majority of employees wanting to bargain not established.

[1] On 24 November 2014 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) lodged an application for a majority support determination pursuant to s.236 of the Fair Work Act 2009 (the FW Act). The majority support determination was sought to apply to employees of Dorma Australia Pty Ltd (Dorma) who are employed in South Australia to perform installation, maintenance and servicing of automated doors, roller doors/shutters, automated gates, boom gates and any other automated entry systems (the employees).

[2] The application was the subject of a hearing on 1 December 2014. The CEPU was represented by Ms Rogers and Mr Smith and Dorma, by Mr Newlyn. The application was opposed by Dorma.

[3] The CEPU position was that the majority of the employees wanted to bargain with Dorma for an agreement pursuant to the FW Act but that Dorma had declined to negotiate.

[4] The initial Dorma position was that the CEPU rules did not provide for coverage of the employees. At the hearing on 1 December 2014, Dorma advised that it no longer pursued this objection. However, it argued that the majority of its employees did not want to have an agreement and were content with the current employment regulation arrangements.

[5] At the hearing on 1 December 2014 I advised that I would arrange for the conduct of a secret ballot to determine the views of the employees. Directions in this respect were forwarded to the parties on 9 December 2014. These directions confirmed that a postal ballot of the employees to determine the majority employee position would be conducted and would close on 24 December 2014 with the results to be declared early in January 2015. The question to be put to employees was “Do you want to bargain with your employer for an Enterprise Agreement under the Fair Work Act 2009”. These directions detailed arrangements for the ballot.

[6] Advice of the secret ballot was forwarded to the parties and to the employees on 15 December 2014. This advice enclosed ballot papers and instructions. This decision details the conclusions I have reached in this regard in the context of the requirements in ss.236 and 237 of the FW Act.

[7] These sections state:

236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(2) The application must specify:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

237 When the FWC must make a majority support determination

Majority support determination

(1) The FWC must make a majority support determination in relation to a proposed single-enterprise agreement if:

(a) an application for the determination has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

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.

(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

(4) The determination comes into operation on the day on which it is made.”

[8] There were 17 employees on the roll of voters and ballot material was sent to each of these employees. Six employees voted in this matter. Five of these employees indicated that they wanted to bargain with the employer. One employee voted against this proposition.

[9] Accordingly, and consistent with s.237(2)(a) I am not satisfied that a majority of the employees at the time the vote was undertaken wanted to bargain with Dorma. The application must be dismissed accordingly.

Appearances:

J Rogers and J Smith for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

C Newlyn appearing for Dorma Australia Pty Ltd.

Hearing details:

2014.

Adelaide:

December 1.

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