DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Greenleaf Pty Ltd T/A A1 Tree Services
(B2020/222)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 7 APRIL 2020

Proposed protected action ballot of employees of Greenleaf Pty Ltd T/A A1 Tree Services.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Greenleaf Pty Ltd (Respondent).

[2] On 2 April 2020, my Associate was advised that the Respondent objected to the application on the basis that it had been bargaining in good faith and that if industrial action were to be taken it would cause severe financial difficulties for the Respondent and in turn its employees who would lose their jobs if the Respondent’s business were to close. My Associate advised the Applicant that it did not appear that any of the matters raised have a statutory basis for an objection under the Act, and invited the Respondent to provide any further objections. On 6 April 2020, my Associate was advised that the Respondent had no further objections to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Ms L Archer of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR718103.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought an authorisation for its members employed by Greenleaf Pty Ltd T/A A1 Tree Services to take protected action in the form of a strike and related action short of a strike. The Union contended that the proposed action was in relation to an industrial matter and sought a determination that it could lawfully conduct a ballot of its members. Greenleaf opposed the application, arguing that the Union's members were not its employees and that the proposed action was not in relation to an industrial matter. The Commission was required to determine whether the Union's members were employees of Greenleaf, and whether the proposed action was in relation to an industrial matter. The Commission held that the Union's members were employees of Greenleaf and that the proposed action was in relation to an industrial matter. The Commission noted that the terms of the contracts for the services of the Union's members demonstrated that they were employees of Greenleaf. The Commission also found that the Union's members were taking action in relation to their employment and the terms and conditions of their employment. The Commission held that the Union was entitled to conduct a ballot of its members in relation to the proposed action. The Commission issued an authorisation for the Union's members to take protected action in the form of a strike and related action short of a strike.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established