[2016] FWC 1134 |
FAIR WORK COMMISSION |
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
<Price code A, PR577269>
1 [2013] FWC 4632 at paragraphs 13 and 14
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