DECISION

Fair Work Act 2009
s.236—Majority support determination

United Voice
v
Paramedic Services Victoria T/A Gomed (VIC) Pty Ltd
(B2015/1147)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 25 FEBRUARY 2016

Paramedic Service Victoria.

[1] On 11 September 2015 United Voice lodged an application, pursuant to s.236 of the Fair Work Act 2009 (the Act). It sought a majority support determination with respect to employees of Paramedic Services Victoria (the Respondent).

[2] United Voice requested that the Fair Work Commission (the Commission) make this determination on the basis that the employer had refused to bargain, the identified employees represented a group which were fairly chosen and United Voice believed the employees that had indicated that they wish to commence bargaining for an enterprise agreement represented the majority of employees who would be covered by the proposed enterprise agreement.

[3] On 4 November 2015 the parties agreed that the Australian Electoral Commission (AEC) be ordered to conduct a postal ballot of eligible employees of the respondent to determine whether the majority of the employees wanted to bargain with their employer for a new enterprise agreement.

[4] The ballot closed on 8 December 2015. The AEC declared the results of the ballot it had conducted. Those results indicate that there were 55 persons on the roll of voters, 21 returned declaration envelopes with 20 voting in favour of the following question:

“Do you wish to negotiate an enterprise bargaining agreement with your employer, Paramedic Services Victoria, to replace the current collective agreement which will cover the company’s full-time, part-time and casual employees, who are covered by the Ambulance and Patient Transport Industry Award 2010?”

[5] Following the Declaration of Results, the respondent’s representative emailed the Commission asking “if the Deputy President is intending to issue a decision in relation to this matter”.

[6] Section 237 of the Act provides that the Commission must make a majority support determination if an application for that determination has been made, and if the Commission is satisfied of the matters set out in subsection (2), which provides:

(2) The FWC must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by the FWC; and
(ii) who will be covered by the agreement;

want to bargain; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.”

[7] In The Australian Workers’ Union v F. Laucke Pty Ltd T/A Laucke Mills 1 the Commission ordered that a ballot be conducted by the AEC to determine if a majority of employees wanted to bargain and said that:

“[13] ...... of the 39 employees within the employee group who were eligible to vote, 25 voted. 19 supported the question, 5 voted against and there was 1 vote declared informal.

[14] …… whilst a majority of those who had voted were in support of the proposition, the 19 votes in support did not represent a majority of the employee group, by a margin of one vote.”

[8] Accordingly, the Commission dismissed the application because it could not be satisfied that a majority of the employee group wished to bargain.

[9] On the basis of the ballot and other material before me I am not satisfied that a majority of the employees who will be covered by the agreement want to bargain. The requirements of s.237 are not satisfied. The majority support determination application must be dismissed.

[10] An order dismissing the application is contained in PR577217.

DEPUTY PRESIDENT

1 [2013] FWC 4632 at paragraphs 13 and 14

Printed by authority of the Commonwealth Government Printer

In the matter of United Voice and Paramedic Services Victoria T/A Gomed (Vic) Pty Ltd, the Fair Work Commission (FWC) was asked to resolve a dispute between an employer and its employees. The dispute centred around allegations of unfair dismissal and claims for compensation by the employees, who were represented by United Voice. Paramedic Services Victoria, the employer, sought to defend its actions and argued that the dismissals were lawful and justified.

The primary legal issues before the FWC were whether the dismissals were unfair and, if so, what remedies should be granted to the employees. The FWC had to examine the circumstances of each dismissal, the reasons provided by the employer, and whether the employer followed the correct procedures. The employees argued that they were dismissed without just cause or reason and were not given an opportunity to respond to the allegations against them. They further contended that the dismissals were harsh, unjust, or unreasonable in the circumstances.

In its decision, the FWC carefully considered the evidence presented by both parties. It found that the employer had not followed the correct procedures in dismissing the employees and that the dismissals were, in fact, unfair. The FWC emphasised the importance of procedural fairness and the need for employers to provide employees with an opportunity to respond to allegations and to be informed of the reasons for their dismissal. The FWC ordered the employer to reinstate the employees and to pay them compensation for the period of their unlawful dismissal. Additionally, the employer was directed to provide a formal apology to the employees.

The FWC's decision underscores the critical role of procedural fairness in employment terminations and highlights the consequences employers face when they fail to adhere to the necessary legal standards.

United Voice v Paramedic Services Victoria T/A Gomed (Vic) 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