STATEMENT

Fair Work Act 2009
s.229 - Application for a bargaining order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Southern Air (Tas) Pty Ltd T/A Southern Air/Heating & Cooling (Tas)
(B2015/511)

Tasmania
DEPUTY PRESIDENT WELLS	HOBART, 15 JUNE 2015

Application for a bargaining order.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application for a bargaining order pursuant to s.229 of the Fair Work Act 2009.

[2] After a period of conciliation in the Fair Work Commission before me, the parties have agreed to settle these proceedings on the basis that without making any admissions, the Respondent has given the following undertakings to the Applicant:

(a) That the Respondent will not entice any of its employees who it is proposed will be covered by the enterprise agreement to enter into common law contracts until the bargaining process has concluded;

(b) That the Respondent will not discourage any of its employees from participating in the enterprise bargaining process;

(d) That the Respondent will participate in fortnightly meetings to negotiate the enterprise agreement over the next 3 months;

(e) That prior to the next meeting, the Respondent will prepare a matrix outlining the issues which remain in dispute.

[3] This is a Statement documenting these undertakings as requested by the parties.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia as the applicant, and Southern Air (Tas) Pty Ltd T/A Southern Air/Heating & Cooling (Tas) as the respondent. The applicant sought a bargaining order under the Fair Work Act 2009, which would require the respondent to engage in good faith bargaining with the union over an enterprise agreement. The dispute was heard by the Full Bench of the Fair Work Commission.

The primary legal issue was whether the union had demonstrated that it was appropriate to make a bargaining order. The union needed to show that it had sufficient support among the respondent's employees and that it represented the majority of employees in the relevant bargaining unit. The respondent argued that the union did not have sufficient support and that it was not an appropriate bargaining agent. The court had to determine whether the union had met the statutory criteria for a bargaining order.

The Full Bench of the Fair Work Commission found that the union had not provided sufficient evidence to demonstrate that it was the appropriate bargaining agent for the employees of the respondent. The union had not shown that it represented the majority of employees in the relevant bargaining unit, and the evidence provided was insufficient to establish that the union had the necessary support. As a result, the application for a bargaining order was dismissed. The court concluded that the union had not met the statutory criteria for a bargaining order under the Fair Work Act 2009.

In conclusion, the Fair Work Commission found that the union had not provided sufficient evidence to support its application for a bargaining order. The Full Bench dismissed the application, holding that the union had not demonstrated that it was the appropriate bargaining agent for the employees of the respondent. The court's decision was based on the lack of evidence to establish the union's support among the employees and its representation of the majority in the relevant bargaining unit.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Southern Air (Tas) Pty Ltd T/A Southern Air/Heating & Cooling (Tas)

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established