[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

(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

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission was a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the "Union") and Greenleaf Pty Ltd trading as A1 Tree Services (the "Employer"). The Union alleged that the Employer had contravened various provisions of the Fair Work Act 2009 by terminating the employment of several employees without just cause or reason. The Union sought to have the terminations declared unlawful and to be compensated for the employees.

The legal issues before the Commission included whether the Employer had followed proper procedures in terminating the employees, whether the terminations were for a valid reason, and whether the Union's right to organise had been interfered with. The Commission had to consider the evidence presented by both parties and determine whether the Employer had acted in accordance with the law.

In its decision, the Commission found that the Employer had not followed proper procedures in terminating the employees, as they had not provided the employees with a valid reason for their termination. The Commission also found that the terminations were not for a valid reason, as the Employer had not demonstrated that the employees were incapable of performing their duties or that their termination was necessary for the business. Finally, the Commission found that the Union's right to organise had been interfered with, as the Employer had not allowed the Union to be present during the termination meetings.

As a result of these findings, the Commission ordered the Employer to reinstate the terminated employees and to compensate them for their lost wages and other entitlements. The Commission also ordered the Employer to pay the Union's legal costs. The Employer has the right to appeal the decision within 21 days of the date of the decision.

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

DECISION

The legislation

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established