FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CEPU v ACTIVE TREE SERVICES PTY LTD | [2011] FMCA 535 |
| INDUSTRIAL LAW – Employee complaint to Fair Work Ombudsman to deal with a dispute – issue of Certificate Under Section 369 of the Fair Work Act 2009 – consequential application pursuant to section 371 for a general protections court application – jurisdictional argument as to whether the certificate issued related in whole or only in part to the general protections court application – considerations of argument in relation to jurisdiction – determination that dispute dealt with by Fair Work Australia must be the same in whole with that brought before the court in relation to the general protections court application – consequential orders. |
| Fair Work Act 2009 (Cth), ss.365, 368, 369, 371 545(2)(b) |
| Applicant: | THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA |
| Respondent: | ACTIVE TREE SERVICES PTY LTD (ABN 56 002 919 299) |
| File Number: | BRG 1006 of 2010 |
| Judgment of: | Coker FM |
| Hearing date: | 24 June 2011 |
| Date of Last Submission: | 24 June 2011 |
| Delivered at: | Townsville |
| Delivered on: | 13 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hartigan |
| Solicitors for the Applicant: | Electrical Trades Union |
| Counsel for the Respondent: | Mr Herbert |
| Solicitors for the Respondent: | Livingstones Australia |
ORDERS
That the Amended Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection filed on 9 November 2010 be dismissed in respect of paragraphs 15 to 24 of Part G – Contraventions Alleged.
That the balance of the Application be adjourned for mention at 9.30am on 10 August 2011 in Cairns.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
BRG 1006 of 2010
| THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA |
Applicant
and
| ACTIVE TREE SERVICES PTY LTD (ABN 56 002 919 299) |
Respondent
REASONS FOR JUDGMENT
On 30 September 2010 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) brought an application under the Fair Work Act 2009 naming Active Tree Services Pty Ltd, ABN 56 002 919 299 as the respondent. The orders that were sought in that application were contained in the claim under the Fair Work Act 2009 which was filed along with the application. The remedy that was sought in relation to three members of the Union, Mark Smith, Wade Baldwin and Carl Cairns, were all pursuant to the provisions of section 545(2)(b) of the Fair Work Act. In relation to each of those members of the union, an amount of compensation was sought equivalent to one year’s loss of income.
The application was supported as required by the legislation by a certificate under section 369 of the Fair Work Act 2009. The certificate, under the hand of Senior Deputy President Richards, was dated
16 September 2010 and was in these terms:An application pursuant to s.365 of the Fair Work Act 2009 (“the Act”) was made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing…
Continue reading CEPU v Active Tree Services Pty Ltd
Sign in free to access the full text
- AGLC
- CEPU v Active Tree Services Pty Ltd [2011] FMCA 535
- Case
- [2011] FMCA 535
- Decision Date
CaseChat Overview and Summary
The court was required to decide several key legal issues. The primary issue was whether the union had standing to bring a claim for unfair dismissal under the Fair Work Act. The court also needed to determine whether the dismissal of the employee was unlawful under the Act. In doing so, the court considered the evidence presented by both parties, including the terms of the employment contract, the circumstances of the dismissal, and the relevant provisions of the Fair Work Act. The court examined whether the union had demonstrated a sufficient connection to the employee to establish standing and whether the employer had provided a valid reason for the dismissal.
In its decision, the court found that the union did not have standing to bring the claim for unfair dismissal. The court held that the union had not demonstrated a sufficient connection to the employee to establish standing. The court also found that the employer had provided a valid reason for the dismissal, and therefore the dismissal was not unlawful under the Fair Work Act. The court dismissed the union's claim in respect of the specified paragraphs and adjourned the balance of the application for further mention. The court's decision was based on the evidence presented and the relevant legal principles governing unfair dismissal claims under the Act.
The final orders of the court were that the amended claim under the Fair Work Act alleging dismissal in contravention of a general protection filed on 9 November 2010 be dismissed in respect of paragraphs 15 to 24 of Part G – Contraventions Alleged. The balance of the application was adjourned for mention at 9.30am on 10 August 2011 in Cairns. The court's decision effectively ended the union's claim in respect of the specified paragraphs and allowed the matter to proceed with the remaining issues to be addressed at a later date.
Orders
Orders of the court
1.
That the Amended Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection filed on 9 November 2010 be dismissed in respect of paragraphs 15 to 24 of Part G – Contraventions Alleged.
2.
That the balance of the Application be adjourned for mention at 9.30am on 10 August 2011 in Cairns.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.