Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Dormakaba Australia Pty Ltd T/A Dormakaba Australia

[2024] FWC 2193

[2024] FWC 2193

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
v

Dormakaba Australia Pty Ltd T/A Dormakaba Australia

(B2024/951)

DEPUTY PRESIDENT O’KEEFFE PERTH, 16 AUGUST 2024

Application for a majority support determination – application granted

1. On 26 July 2024 the Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) applied for a majority support determination under s.236(1) of the Fair Work Act 2009 (Cth) (the Act). The Applicant contends that a majority of relevant employees who would be covered by a proposed enterprise agreement want to bargain with their employer, Dormakaba Australia Pty Ltd (Dormakaba).

1. Having received the s.236 application, on 30 July 2024 I issued directions to the parties to provide, in the case of the CEPU, copies of the petitions it asserted had been signed by the employees, a reference to the section of the CEPU’s rules which allowed it to cover those employees and any submissions it wished to make with respect to s.237(2) of the Act. Dormakaba was directed to provide the names of the persons employed in the classifications specified by the Applicant, any submissions it wished to make with respect to s.237(2) of the Act and an indication of whether it opposed the making of a majority support determination.

1. The parties complied with those directions and Dormakaba indicated that it opposed the making of a majority support determination. The basis of that opposition was a belief that the CEPU did not have majority support for bargaining. However, I note that Dormakaba conceded that it had not agreed to bargain and did not object to the CEPU’s contention that the group of employees had been fairly chosen. Dormakaba further conceded that it would be reasonable in all of the circumstances for the Fair Work Commission (FWC) to make a majority support determination if the CEPU could demonstrate majority support but again submitted that this was not the case.

Statutory Framework

1. Section 237 of the Act provides that the FWC must make a majority support determination in relation to a proposed single enterprise agreement if an application has been made under s.236, and where the FWC is satisfied of the matters in s.237(2). That section provides:

“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.

…”

1. In relation to s.237(2)(a), the FWC may determine whether a majority of employees want to bargain by using any method it considers appropriate (see s.237(3)).

1. If the proposed agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is ‘geographically, operationally or organisationally distinct’ (s.237(3A)).

1. On the material before me I find that the CEPU is a bargaining representative of the employees in question and is entitled under its registered rules to represent the industrial interests of those employees. The application specifies the employer and employees who will be covered by the agreement. As such, I am satisfied that a valid application has been made under s.236.

1. The first matter prescribed by s 237 is whether the FWC is satisfied that a majority of the relevant employees who are employed by the employer at a time determined by the FWC want to bargain (s.237(2)(a)).

2. As per directions, the CEPU provided details of a survey conducted amongst employees. The survey material included the names of the employees who had participated in the survey and showed that all of those employees wanted Dormakaba to bargain with the CEPU. However, I had concerns regarding two of the entries on the survey. As such, I advised the CEPU that I did not believe those entries could be included in the tally of employees who supported bargaining and sought their views on how to proceed. The CEPU advised that notwithstanding the removal of those two entries it could still demonstrate majority support as it claimed that persons who were not part of the relevant group had been included in the list provided to Dormakaba.

1. I invited the CEPU to provide details of those persons it said should not have been included. The CEPU then provided a list of all persons it said should be included and those it said should not. However, it was clear that those persons the CEPU said should not be included had in fact not been included in the Dormakaba list. I then identified the four individuals who were on the Dormakaba list who were not on what the CEPU believed was the correct list.

1. I advised the parties that I would seek from Dormakaba a statutory declaration that those four employees were part of the group of employees who would be covered by the proposed agreement and this declaration was provided. Dormakaba supplied such declaration and on that basis, the CEPU would not have been able to demonstrate majority support. However, the following day the CEPU provided an additional three surveys which had been completed by employees I confirmed were within the relevant group, which indicated those three employees supported bargaining.

1. I then advised the parties that with these three additional surveys I was satisfied that the CEPU could demonstrate majority support and thus s.237(2)(a) is satisfied. As such, I sought the views of Dormakaba as to how it would like to proceed. Dormakaba advised via email on 14 August 2024 that it no longer opposed the making of a majority support determination.

1. With respect to the requirement in s.237(2)(b) it was not in contention and I find that Dormakaba has not agreed to bargain with the CEPU. With respect to the requirement in s.237(2)(c) I find that the group, being the technicians employed by Dormakaba, is operationally distinct and fairly chosen. With respect to the requirement in s.237(2)(d) it was not in contention between the parties – on the basis that there was majority support –that it is reasonable in all of the circumstances to make the order. I find that this is the case.

1. The only issue remaining is to decide the date for the purposes of s.237(2)(a)(i). With respect to this issue, the Full bench in Kantfield Pty Ltd v AWU [2016] FWCFB 8372 (Kantfield) at [35] said as follows:

“The power to apply a time-based limitation is confined to section 237(2)(a)(i) and not section 237(2)(a) more broadly. That is, the power to apply a point-in-time limitation in section 237(2)(a)(i) is directed to fixing the time at which the FWC is to determine who are the persons employed only. Therefore, it does not confer a broader power to “fix” historical or future points in time for other aspects of section 237.”

1. It is also clear as set out in Kantfield at [37] that the decision should be made based on the most current material available to the FWC. In this instance, that material is as per the CEPU’s surveys as submitted to the FWC. In AWU v Woodside Energy Ltd Deputy President Binet stated in support of adopting, for the purposes of s.237(2)(a)(i), the day the union involved finished collecting petitions as follows (citations removed):

“In CEPU v South32 Deputy President Beaumont followed the decisions in both Kantfield Pty Ltd v AWU and National Union of Workers v Lovisa Pty Ltd and determined that the time for the employee cohort to be fixed was the date when the union ‘ceased garnering signed petitions’.”[1]

1. Taking into account all of these findings I therefore determine the date for the purposes of s.237(2)(a)(i) to be 12 August 2024, being the day on which the CEPU received the last of the employee petitions.

Conclusion

1. As I am satisfied that the requirements of s.237(2), have been met, and having determined the date for the purposes of s.237(2)(a)(i) is 12 August 2024, I am required by s.237(1) to make a majority support determination. The determination is issued separately in PR778408.

DEPUTY PRESIDENT

[1] AWU v Woodside Energy Ltd[2023] FWC 249 at [345].

Printed by authority of the Commonwealth Government Printer

<PR778407>