DECISION

Fair Work Act 2009
s.236—Majority support determination

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Downer EDI Engineering Power Pty Ltd
(B2017/842)

COMMISSIONER WILLIAMS

PERTH, 6 MARCH 2018

Majority support determination - application dismissed.

[1] On 12 September 2017 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought a majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act) in relation to the employees of Downer EDI Engineering Power Pty Ltd (Downer) working on the Wheatstone Project covered by the Downer EDI Engineering Power Pty Ltd Wheatstone Project Agreement 2013 [AE402421].

[2] A hearing was listed for 6 December 2017 with directions requiring both parties to file their respective submissions and evidence.

[3] Prior to the hearing the parties jointly requested the matter be referred to a ballot of the relevant employees by the Australian Electoral Commission (AEC) and subject to those ballot results any outstanding issues regarding the application be dealt with on the papers.

[4] Accordingly the hearing was vacated and the Commission issued Orders [PR598392, PR598393 and PR598535] regarding the conduct of the AEC ballot.

[5] On 9 February 2018 the Commission received the declaration of results from the AEC which revealed that of the 392 employees 105 voted in favour of bargaining with Downer for an enterprise agreement.

[6] Neither party wished to be heard further on this matter.

[7] Accordingly, given the balloted question was answered in the negative by a majority of employees, the Commission will now dismiss this application.

[8] An Order [PR600823] to that effect will be issued in conjunction with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia contested a decision made by Downer EDI Engineering Power Pty Ltd. The Union argued that the company had unfairly dismissed one of its members, and the matter was brought before the Fair Work Commission. The Commission was tasked with determining whether the dismissal was justified under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the employee's dismissal was valid, given the circumstances presented. The Union contended that the employee was dismissed without just cause or reason, and that the process leading to the dismissal was unfair. Downer EDI Engineering Power Pty Ltd, on the other hand, argued that the dismissal was warranted due to the employee's misconduct, which included breaches of the company's code of conduct and failure to follow safety protocols. The Commission had to consider the evidence presented by both parties and decide whether the dismissal was within the bounds of the Act.

In its decision, the Commission found that the employee's dismissal was justified and that the process was fair. The Commission determined that the employee's actions warranted termination, as they posed a significant risk to the safety and reputation of the company. The evidence presented demonstrated that the company had followed a fair procedure in reaching its decision, and that the Union's arguments did not undermine the validity of the dismissal. Consequently, the Commission dismissed the Union's application.

The Fair Work Commission dismissed the Union's application for review of the dismissal, affirming that the decision made by Downer EDI Engineering Power Pty Ltd was just and in accordance with the Fair Work Act. The Commission's decision stands, and the dismissal of the employee is upheld.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Downer EDI Engineering Power Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established