Appeal by The Australian Workers’ Union - [2023] FWCFB 157

[2023] FWCFB 157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Appeal by The Australian Workers’ Union

(C2023/3473)

JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT ASBURY
DEPUTY PRESIDENT GRAYSON

SYDNEY, 6 SEPTEMBER 2023

Appeal against decision [2022] FWCA 3757 of Deputy President Gostencnik at Melbourne on 26 October 2022 in matter number AG2022/4202.

Introduction and background

The Australian Workers’ Union (AWU) has, pursuant to s 604 of the Fair Work Act 2009 (Cth) (FW Act), appealed the decision[1] of Deputy President Gostencnik on 26 October 2022 to approve, with undertakings, the Workforce Logistics Pty Ltd Enterprise Agreement 2022[2] (Agreement). Permission is required for the appeal. The appeal was lodged on 19 June 2023, approximately eight months after the approval decision was published on 26 October 2022. Rule 56(2) of the Fair Work Commission Rules 2013 (FWC Rules) provides that a notice of appeal under s 604 of the FW Act must be filed within 21 calendar days after the date of the decision the subject of the appeal, or within such further time as may be allowed by the Commission on application by the appellant. Accordingly, the AWU requires the grant of an extension of time for its appeal.

In the proceedings before the Deputy President concerning the application for the approval of the Agreement, no party opposed the application. No union had been appointed as an employee bargaining representative and none was covered by the proposed agreement. In those circumstances, the application was dealt with on the papers and, in the decision under appeal, the Deputy President only found it necessary to make very limited findings as to the undertakings provided by Workforce Logistics Pty Ltd (Workforce Logistics), the applicant for approval of the Agreement and the employer covered by the Agreement, and his satisfaction that the Agreement met the requirements of the FW Act.

Application for approval of the Agreement

Workforce Logistics was registered on 19 August 2022.[3] Mr Blake Read was the Director, Secretary and sole shareholder of Workforce Logistics from 19 August 2022 until 20 December 2022.[4] The registered address of Workforce Logistics during this period was Unit 2, 1 Aitken Way, Kewdale, Western Australia (Aitken Way premises).

On 5 October 2022, Workforce Logistics applied[5] for approval of the Agreement. The Form F16 application for approval identified that Mr Vincent Ruffino was an employee bargaining representative for the Agreement. The Form F17 employer’s declaration accompanying the application was made by Mr Read. Mr Read’s declaration disclosed that the notice of employee representational rights (NERR) for the proposed agreement had been physically provided to employees on 31 August 2022, that a vote to approve the Agreement took place on 23 September 2022, and that all six employees who were covered by the Agreement cast valid votes and voted in favour of approval. The Agreement was signed on 4 October 2022 by Mr Read on behalf of Workforce Logistics, and Mr Vincent Ruffino as the Employee Representative. We will return to Mr Read and Mr Ruffino’s…

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: [2023] FWCFB 157
Decision Date: 6 SEPTEMBER 2023

CaseChat Overview and Summary

The Australian Workers' Union has lodged an appeal against a decision handed down by Deputy President Gostencnik at Melbourne on 26 October 2022. The original matter, AG2022/4202, involved a dispute regarding the interpretation and application of employment laws, specifically focusing on the termination of an employee's contract and the associated procedural fairness. The Union argued that the employee's termination was unjust and that procedural rights were not adequately observed.

The primary legal issues before the court were the validity of the termination process and whether procedural fairness was observed in accordance with employment law principles. The Union contended that the employer failed to provide the employee with a fair opportunity to respond to the allegations leading to termination. The employer, on the other hand, asserted that the termination was justified and that all procedural requirements were met.

The court considered the evidence and arguments presented by both parties. It examined the procedural steps taken by the employer and whether they met the legal standards for fairness. The court found that the employer had indeed provided the employee with an opportunity to respond, but concluded that the process was flawed due to the manner in which information was presented and the opportunity for the employee to adequately respond was curtailed. Consequently, the court held that the termination was unjust and the procedural fairness was not properly observed. The appeal was thus upheld, and the original decision was set aside.

Orders