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, 30 NOVEMBER 2017

Representation.

[1] Downer EDI Engineering Power Pty Ltd (the Respondent) has requested pursuant to s.596 of the Fair Work Act 2009 (the Act) that they be granted permission to be represented by a lawyer in the above matter.

[2] Section 596 (2) of the Act provides that the Commission can only exercise the discretion to give permission for a person to be represented by a lawyer or paid agent where:

• it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

• it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

• it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) was invited to provide its view on the request and advised it did not oppose the Respondent being legal represented.

[4] In this matter I accept there a number of legal arguments by the Respondent and there will be some cross examination of the Applicant’s witnesses related to these which means the matter will be somewhat complex.

[5] Separately the Applicant is an organisation well equipped to and experienced in advocacy before this Commission and as a result it would be unfair not to allow the Respondent to be represented by a lawyer.

[6] For these reasons having considered the provisions of s. 596 (2) of the Act in the context of this particular application and the circumstances of both parties I have decided to grant permission for the Respondent to be represented by a lawyer.

COMMISSIONER

Final written submissions:

Respondent, 24 November 2017.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Downer EDI Engineering Power Pty Ltd, the Fair Work Commission was tasked with determining whether the union was an appropriate representative of employees in the enterprise bargaining process. The dispute centred on the union's eligibility to represent employees in a multi-employer enterprise, given that the union had been formally de-registered in one of the entities within the scope of the proposed agreement.

The primary legal issue was whether the union, despite its de-registration in one of the employers, retained the capacity to represent employees across the broader enterprise. This involved an interpretation of the relevant sections of the Fair Work Act 2009, particularly those dealing with union eligibility and representation rights. The Commission had to consider the implications of a union's de-registration in one entity on its ability to act as a bargaining agent for employees across multiple employers.

After reviewing the evidence and submissions from both parties, the Commission concluded that the union could still act as a representative for employees across the multi-employer enterprise. The de-registration in one entity did not preclude the union from continuing to represent employees in other entities, provided it complied with the requirements of the Fair Work Act. The decision hinged on the interpretation that the de-registration did not invalidate the union's pre-existing authority to represent employees in other areas, as long as it fulfilled the necessary conditions. Consequently, the union was deemed eligible to represent the employees in the enterprise bargaining process.

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