DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Health Services Union
v
ISS Facility Services Australia Pty Ltd T/A ISS Facility Services
(B2019/1296)

COMMISSIONER CAMBRIDGE

SYDNEY, 10 DECEMBER 2019

Application for a majority support determination.

[1] On 8 November 2019, the Health Services Union (the HSU) made an application to the Fair Work Commission (the Commission) for a majority support determination pursuant to section 236 of the Fair Work Act 2009 (the Act). The application sought a determination in respect to members of the HSU employed by ISS Facility Services Australia Pty Ltd (the employer) at its St George Hospital site, and who work as cleaners (relevant employees).

[2] The matter was listed for proceedings before the Commission on 18 November 2019. At these proceedings the HSU was represented by Mr L Amos. The employer was represented by Mr D O’Rourke, National General Manager of People & Culture together with Mr J Sutton for the employer.

[3] Mr Amos referred to the material provided with the application as the grounds in support of the making of a majority support determination. Mr Amos submitted that the details of the communication exchanged between the HSU and the employer which were included in the application, clearly established the recent history of attempts to initiate enterprise bargaining in respect to the relevant employees.

[4] On 2 December 2019, the HSU provided the Commission with a petition signed by numerous individuals who were asserted to be relevant employees who had signed the petition indicating that they wanted to bargain for an enterprise agreement with the employer.

[5] On 2 December 2019, the employer also provided the Commission with a list of names of all of the relevant employees for the purposes of enabling the Commission to determine whether or not the petition provided by the HSU, established that a majority of the relevant employees wanted to bargain for an enterprise agreement with the employer.

[6] The Commission has carefully examined the petition provided by the HSU and cross-checked the signatories against the list of relevant employees provided by the employer. The identifiable names on the petition have been cross-checked against the names appearing on the employee list. The petition contains a number of duplications which have not been double counted.

[7] As a result of the Commission’s analysis of the identifiable names on the petition when cross-checked with the names appearing on the employee list, there is not a clear majority of identified relevant employees who have signed the petition.

[8] Therefore, as the requirements of subsection 237 (2) (a) of the Act have not been satisfied the application must be refused.

COMMISSIONER

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CaseChat Overview and Summary

The case of Health Services Union v ISS Facility Services Australia Pty Ltd T/A ISS Facility Services involved a dispute between the Health Services Union and ISS Facility Services Australia. The union sought a majority support determination, which would allow it to be recognised as the appropriate bargaining agent for the employees of ISS Facility Services. The matter was heard in the Fair Work Commission of Australia.

The central legal issue before the commission was whether the union could be recognised as the appropriate bargaining agent for the employees of ISS Facility Services. The union had to demonstrate that it had the support of a majority of the employees, as required by section 177 of the Fair Work Act 2009. The commission was required to consider whether the union had provided sufficient evidence to establish majority support, and whether any irregularities in the ballot process affected the validity of the result.

In reaching its decision, the commission considered the evidence provided by both parties. The union argued that it had received a majority of the votes cast in the ballot, while ISS Facility Services contested the validity of the ballot result, citing irregularities in the process. After reviewing the evidence, the commission determined that the union had not provided sufficient evidence to establish majority support. The commission found that there were irregularities in the ballot process that could not be rectified, and as such, the union could not be recognised as the appropriate bargaining agent for the employees of ISS Facility Services.

The commission dismissed the union's application for a majority support determination, and no orders were made in favour of the union. The decision of the commission is final and binding, and cannot be appealed except on a question of law.

Health Services Union v ISS Facility Services Australia Pty Ltd T/A ISS Facility Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established