| [2017] FWCFB 3005 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—appeal of a decision
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU)
v
Berri Pty Limited
(C2017/857)
| JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT GOOLEY | MELBOURNE, 9 JUNE 2017 |
Appeal against decision [2017] FWC 514 of Deputy President Lawrence at Sydney on 27 January 2017 in matter number C2016/5808 – errors in decision making process –- permission to appeal granted – appeal upheld and decision set aside – remitted for rehearing.
Introduction
The matter before us is an appeal from a decision of Deputy President Lawrence (the Decision)[1] which dealt with a dispute arising under the Berri Pty Limited (Leeton) Enterprise Agreement 2014 – 2017 (the 2014 Agreement). The dispute in question was about whether there is an entitlement to a ‘laundry allowance’ under the 2014 Agreement and was characterised by the Deputy President in the following terms:[2]
‘It is about whether or not Laundry Allowance which is contained in Attachment 3 of the Agreement is properly payable to employees at the Leeton plant who are required to wear and keep clean, as required by clause 26, their protective clothing which is provided by Berri.’
It was common ground that the Commission had jurisdiction to hear and determine the dispute.
The Deputy President decided that ‘there is no entitlement to the payment of Laundry Allowance to employees of Berri at the Leeton factory pursuant to the Agreement.’[3] The AMWU has appealed that decision.
We propose to say something about the 2014 Agreement and the proceedings at first instance before turning to the appeal.
The 2014 Agreement
The 2014 Agreement was approved on 17 November 2014 and commenced operation on 24 November 2014, with a nominal expiry date of 1 February 2017.[4] The 2014 Agreement applies to Berri Pty Limited (Berri) and all employees covered by the classifications set out in the Agreement. The AMWU is covered by the 2014 Agreement.
Clauses 4.3 and 26 and Attachment 3 of the 2014 Agreement are relevant to the determination of the dispute. These terms provide as follows:
4.3 Interaction with awards
(i)This Agreement incorporates the terms of the Food, Beverage and Tobacco Manufacturing Award 2010, in relation to employees who are covered by that award. For such employees, where there is conflict between this Agreement and that award, this Agreement will prevail to the extent of any inconsistency.
(ii)This Agreement incorporates the terms of the Manufacturing and Associated Industries and Occupations Award 2010, in relation to employees who are covered by that award. For such employees, where there is conflict between this Agreement and that award, this Agreement will prevail to the extent of any inconsistency.
26 Protective Clothing
26.1The Company undertakes to provide suitable protective clothing and footwear to employees as required by the respective health and safety regulations and/or as deemed necessary for the particular work area.
26.2 Protective clothing remains the property of the Company at all times.
26.3All…
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- AGLC
- AMWU v Berri Pty Ltd [2017] FWCFB 3005
- Case
- [2017] FWCFB 3005
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Full Bench was whether the Deputy President had made an error in his decision-making process that warranted the granting of permission to appeal. The AMWU argued that the Deputy President had failed to properly consider relevant evidence and had made a number of errors in his interpretation of the law. The Full Bench needed to determine whether the Appellant had established an arguable case of error in relation to the decision subject to appeal, such as to warrant the granting of permission to appeal.
The Full Bench found that the Appellant had indeed established an arguable case of error in relation to the decision subject to appeal. They held that the Deputy President had failed to properly consider relevant evidence and had made a number of errors in his interpretation of the law. The Full Bench found that the Deputy President had erred in his reasoning process and that this error was significant enough to warrant the granting of permission to appeal. Accordingly, the Full Bench granted permission to appeal, upheld the appeal and quashed the Decision. The Full Bench also noted that the parties were in the process of renegotiating the 2014 Agreement and encouraged them to seek a resolution of the matter raised in the AMWU’s s.739 application as part of those negotiations.
The Full Bench remitted the AMWU’s s.739 application to Deputy President Gostencnik for hearing and determination. The Commission was available to assist the parties in that regard, if they wished. The Full Bench's decision highlighted the importance of properly considering all relevant evidence and correctly interpreting the law in decision-making processes.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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