Numbers Don’t Add Up

After trying unsuccessfully to get an employer to engage in enterprise bargaining, a union decided to apply to the Fair Work Commission for a majority support determination.

The union was confident that a majority of the 55 employees that would be covered by the proposed agreement wanted to bargain. For its part, the employer agreed with the union that the Australian Electoral Commission be engaged to conduct a ballot of all the eligible employees. The vote was duly held and the numbers reported to the commission.

In its decision, the FWC noted that 20 out of the 21 votes cast were in favour of enterprise bargaining. But there was more to it than that. The law required that there be a majority of the employees affected, not just a majority of votes cast. Since there were 55 employees engaged at the time, and officially accounted for by the records the FWC required, then there was no argument; the majority support determination could not be issued.

The commission dismissed the application and the employer was not forced to bargain.

Paramedics Victoria v United Voice [2016] FWC 1134 (25 February 2016)