4 yearly review of modern awards
[2015] FWCFB 696
•29 JANUARY 2015
| [2015] FWCFB 696 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
(AM2014/91)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 29 JANUARY 2015 |
4 yearly review – Textile, Clothing, Footwear and Associated Industries Award 2010 – procedural decision.
[1] On 18 December 2014, the Textile, Clothing and Footwear Union of Australia (TCFUA) filed a submission and witness statements, in compliance with Amended Directions made by the Full Bench on 17 December 2014 in relation to the 4 yearly review of the Textile, Clothing, Footwear and Associated Industries Award 2010. The materials filed included a witness statement of Ms L Nguyen, an employee of the TCFUA, which contained evidence of the consultation processes employed by three employers:
● In paragraph 15, in relation to a recent redundancy process;
● In paragraph 16, in relation to a change in working hours, which included a requirement by the employer on workers to take time off in lieu of payment for overtime in about July 2014; and
● In paragraph 17, in relation to, at an unspecified time, the sending of workers home early due to power failures and a requirement by the employer on workers to make up the time at a time workers were not normally required to work.
[2] The workplaces/employer’s were not named in the statement, in part, because “Many of the workplaces are small and our members are silent members and fearful of reprisal if they are known to their employer to be union members” [paragraph 7].
[3] In relation to a change in working hours referenced in paragraph 16, according to the statement of Ms Nguyen, the TCFUA brought the relevant issue to the attention of the employer and successfully resolved the matter by negotiation with the employer.
[4] On 19 January 2015, Australian Business Lawyers & Advisors Pty Limited (ABL), an employer association, wrote to the TCFUA seeking the disclosure of the identity of the employers referred to in paragraphs 15–17 of the statement of Ms Nguyen.
[5] On 22 January 2015, the TCFUA wrote to the Chambers of the presiding Member of the Full Bench advising of the 19 January 2015 request by ABL and advised that it did not propose to provide the names of the businesses referred to in paragraphs 15–17 of the statement of Ms Nguyen because to do so would put at risk the ongoing employment and industrial rights of those TCFUA members employed by those employers.
[6] An Associate to the presiding Member responded on 22 January 2015 advising that the Fair Work Commission (the Commission) was not in receipt of a request for the disclosure of the identity of the employers referred to in paragraphs 15–17 of the statement of Ms Nguyen and would only consider such a request and the TCFUA’s objection, if such a request was made.
[7] On 23 January 2015, ABL wrote to the Associate of the presiding Member, requesting that the Commission make an order directing the TCFUA to identify both the employees and employers/workplaces referred to in the statement of Ms Nguyen.
[8] We do not propose to make such an order.
[9] It is a matter for the TCFUA as to what evidence it brings and the form of that evidence. As an industrial organisation, with experienced officers, it is in a position to assess the evidentiary value of and weight likely to be attributed to the evidence in the form of the statement of Ms Nguyen, having regard to the importance of advancing cogent and probative evidence in relation to any application to vary awards. 1
[10] In the hearing on 13 March 2015, we will deal with:
● any applications for suppression of the evidence, or any aspect of the evidence under ss.593-594 of the Fair Work Act 2009; and
● any applications to strike out paragraphs 15–17 of the statement of Ms Nguyen and/or any submissions as to the weight, if any, which can be placed on the evidence to the extent that it is hearsay evidence and in circumstances where ABL (and any other interested party) is denied an opportunity to test the evidence by way of cross-examination, informed by an ability to seek instructions as to the relevant events, or by the bringing of responsive evidence in relation to the events relied on in the statement of Ms Nguyen.
SENIOR DEPUTY PRESIDENT
1 Issues Paper, 4 yearly review of modern awards, published on 24 January 2014, at para 28.
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