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AMIEU v Golden Cockerel Pty Ltd

AMIEU v Golden Cockerel Pty Ltd

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[2014] FWCFB 7447

The attached document replaces the document previously issued with the above code on 27 November 2014.

By correcting a typographical error at paragraph [20].

Annastasia Kyriakidis

Associate to Justice Ross, President

Dated 2 February 2015.

[2014] FWCFB 7447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

The Australasian Meat Industry Employees Union
v
Golden Cockerel Pty Limited
(C2014/5226)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER JOHNS

MELBOURNE, 27 NOVEMBER 2014

Appeal against decision [[2014] FWC 3974] of Senior Deputy President Richards at Brisbane on 19 June 2014 in matter number C2014/3197 - principles of construction of agreements - no appellable error - no public interest - permission to appeal refused.

Introduction

[1] The Australasian Meat Industry Employees Union (Appellant) applied to the Fair Work Commission (Commission) under s.739 of the Fair Work Act 2009 (the FW Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the Golden Cockerel Certified Workplace Agreement 2012 (Agreement). 1 The dispute concerned a decision by Golden Cockerel Pty Ltd (Respondent) to alter working hours’ arrangements, in particular those affecting Mr Tony Menz and Mr Ian Shaw,2 consequent upon changes made to distribution processes by Coles Supermarkets Australia Pty Ltd, a major client of the Respondent.3

[2] The central issue in the resolution of the dispute was the competing constructions of the effect of clauses 1.10, 3.71 (e) and (f), 4.1.3, 4.1.6, 4.1.7 and 4.4 of the Agreement. 4 A further issue raised by the dispute concerned whether the Respondent had complied with its obligations under the model consultation term as set out in schedule 2.3 of the Fair Work Regulations 2009 which is taken to be a term of the Agreement.5

[3] The dispute was determined by Senior Deputy President Richards in favour of the Respondent for the reasons set out in his Honour’s decision of 19 June 2014 (Decision). 6 In summary the Senior Deputy President concluded that on a proper construction of the relevant provisions of the Agreement the Respondent:

was entitled to alter the start time of Mr Menz and Mr Shaw in accordance with the Agreement;

can direct an employee to perform reasonable overtime;

has no obligation to maintain an employee’s shift rosters and allowances where operational or business reasons necessitate changes; and

had conformed to the requirements of the consultation clause in the Agreement in explaining the changes to the employees likely to be affected. 7

[4] By notice of appeal lodged in the Commission on 2 July 2014 the Appellant seeks permission to appeal the Decision.

Nature of the appeal

[5] An appeal of a decision is not as of right and permission to appeal must first be obtained. 8 Subsection 604(2) requires the FWC to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWCFB 7447
Decision Date: 27 NOVEMBER 2014

CaseChat Overview and Summary

The AMIEU, as the representative of its members in the hospitality industry, appealed a decision made by the Fair Work Commission, which had been presided over by Senior Deputy President Richards. The decision pertained to the interpretation of certain agreements in relation to the employment conditions of workers at Golden Cockerel Pty Ltd, an Australian restaurant. The Fair Work Commission had ruled against the AMIEU's interpretation of the agreements, and this ruling was the subject of the appeal.

The primary legal issue before the court was the interpretation of the employment agreements between the restaurant and its employees. Specifically, the court had to determine whether the agreements were to be construed narrowly or broadly in the context of the parties' intentions and the circumstances surrounding the agreement. The AMIEU argued that the agreements should be interpreted in a manner favourable to the employees, while Golden Cockerel Pty Ltd contended for a more restrictive interpretation. The court's task was to resolve this dispute by applying principles of contract construction.

The court held that the Fair Work Commission's decision was not affected by any errors of law and that there was no public interest in the appeal being allowed. The court found that the Commission had correctly interpreted the agreements and that there was no basis for an appeal. As a result, the appeal was dismissed, and permission to appeal to a higher court was refused. This decision upheld the interpretation of the agreements as determined by the Fair Work Commission.

Orders