Construction, Forestry, Mining and Energy Union v Oz Linemarking Pty. Ltd

[2010] FWA 8485

[2010] FWA 8485

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.236—Majority support determination

Construction, Forestry, Mining and Energy Union
v
Oz Linemarking Pty. Ltd.
(B2010/3499)

COMMISSIONER RYAN MELBOURNE, 3 NOVEMBER 2010

Oz Linemarking Pty. Ltd -application for majority support determination.

[1] The application by the CFMEU in this matter was subject to a hearing before the Tribunal on 25 October 2010. The application was strenuously opposed by Oz Linemarking P/L (Oz Linemarking).

[2] At the hearing both the CFMEU and Oz Linemarking presented material in support of their respective contentions. The respective material effectively cancelled out the claims made by both sides.

[3] In order to be satisfied, as I am required to be, that a majority of the employees of Oz Linemarking who will be covered by the proposed agreement want to bargain with their employer, I advised the parties that it would be necessary for an independent vote of employees to be undertaken.

[4] At the hearing the CFMEU and Oz Linemarking agreed on the question to be put to employees and agreed that there were 21 employees who would be covered by the proposed agreement.

[5] I advised the parties that I would undertake the ballot of employees at 8.00pm on 25 October at the premises of Oz Linemarking in Dandenong South. The timing of the ballot took into account the fact that the majority of employees of the company were employed on a night shift. Mr Clarke from Oz Linemarking assisted in ensuring that day shift employees were encouraged to attend the vote by paying all employees to attend the ballot.

[6] I attended the Dandenong South workshop at 8.00pm but only 19 of the 21 employees were in attendance. The remaining 2 employees who were currently on forms of leave from work had not responded to attempts by Oz Linemarking to contact them for the purpose of inviting them to attend the ballot.

[7] The process undertaken at the ballot was as follows:

• Mr Clarke from Oz Linemarking and Mr Stephenson from the CFMEU attended and assisted with the ballot;



• In a general area of the workshop I explained to the employees the nature of the process and the question on the ballot paper;



• Mr Stephenson left the area whilst Mr Clarke spoke to the employees in my presence and advised them of the reasons why they should vote against commencing bargaining;



• Mr Clarke then left the area whilst Mr Stephenson spoke to employees in my presence and advised them why they should vote for commencing bargaining;



• A room was provided for the undertaking of the ballot which contained a table and chairs for the issuing of ballot papers and a separate table and chair for the employee to record their vote in secret and place their completed ballot paper in a ballot box;



• Mr Stephenson and Mr Clarke acted as scrutineers while I issued ballot papers to each employee;



• At the conclusion of the ballot Mr Clarke and Mr Stephenson counted the ballot papers in my presence.

[8] The result of the ballot was 10 votes in favour of commencing bargaining and 9 votes against. The result of the ballot failed to disclose that a majority of the employees wanted to commence bargaining with their employer.

[9] However due to the closeness of the vote and the absence of 2 employees I advised the employees, the CFMEU and Oz Linemarking that I would conduct a second ballot as soon as Mr Clarke could ensure all 21 employees were able to attend a meeting.

[10] The Tribunal returned to the Dandenong South workshop at 8.00pm on 28 October 2010 and with all 21 employees in attendance and using the same process I conducted a second ballot. On this occasion instead of using the question agreed to between the CFMEU and Oz Linemarking P/L I drafted a different question and one which more closely resembled the language of s.237(2)(a).

[11] The result of the ballot was 7 votes in favour of commencing bargaining and 14 votes against.

[12] As a result of the ballot I am satisfied that a majority of the employees of Oz Linemarking who would be covered by the proposed enterprise agreement do not want to bargain with their employer.

[13] The application is dismissed.

COMMISSIONER

Appearances:

Mr R Wainwright for the Applicant

Mr M Ritchie, VECCI, for the Respondent

Hearing details:

2010:

Melbourne,

25 October

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