Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Greenleaf Pty Ltd T/A A1 Tree Services

[2019] FWC 5137

[2019] FWC 5137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Greenleaf Pty Ltd T/A A1 Tree Services
(B2019/477)

DEPUTY PRESIDENT BARCLAY HOBART, 24 JULY 2019

Greenleaf Pty Ltd.

[1] The Applicant has applied for a majority support determination pursuant to s 236 of the Fair Work Act 2009 (the Act). It is made in respect of employees of Greenleaf (Tas) Pty Ltd trading as A1 Tree Services. That company is engaged in vegetation clearing, primarily for the power industry.

[2] The Application was listed for hearing on 22 July 2019. The Tasmanian Chamber of Commerce and Industry (TCCI), who represents the Respondent indicated by email on 19 July 2019 that:

“…if the Deputy President is satisfied that majority exists from both listings of names provided then the Employer will not be disputing the claim.”

[3] In light of that the hearing was cancelled and I proceeded to determine the Application on the papers.

The legislation

Section 236 of the Act sets out what must be contained in any application for a majority support determination. It states:

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(2) The application must specify:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.”

[4] Section 237 deals with what the Commission must be satisfied about before a
Determination is made. It states:

“237 When the FWC must make a majority support determination

Majority support determination

(1) The FWC must make a majority support determination in relation to a proposed single enterprise agreement if:

(a) an application for the determination has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which the FWC must be satisfied before making a majority support determination

(2) The FWC must be satisfied that:

(a) a majority of the employees:

(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.

(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, taking into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

(4) The determination comes into operation on the day on which it is made.

Consideration

[5] In the email referred to in paragraph [1] above, the reference to “both listings” was the petition for the majority support and a payroll summary of the employer’s employees provided by the employer (excluding managers). I note the group to be covered by the proposed enterprise agreement was all the employees of the Respondent other than managers.

[6] I am satisfied that this application has been made by an organisation that is entitled to be a bargaining representative of the employees who would be covered by the proposed enterprise agreement at A1 Trees. The application also specifies the employer and the employees who are intended to be covered by the proposed enterprise agreement. I am also satisfied, as required by s.237(2), that a majority of the employees who are intended to be covered by the proposed enterprise agreement want to bargain with their employer. I am also satisfied that A1 Trees has not yet agreed to bargain, or has not yet initiated bargaining for the agreement.

[7] I am also satisfied that the group of employees who will be covered by the proposed agreement are fairly chosen, being all the Respondents employees other than managers. The employees are accordingly geographically, operationally and organisationally distinct. Accordingly I am satisfied that it is reasonable in all the circumstances to make the determination sought. The Determination is made and issued concurrently with this decision.

[8] The Determination will operate from the date of this decision.

DEPUTY PRESIDENT

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