REASONS FOR DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Australasian Meat Industry Employees Union, The
v
Coles Supermarkets Australia Pty Ltd
(B2016/949)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

ADELAIDE, 2 NOVEMBER 2016

Majority support determination – revocation of decision [2016] FWC 7893 and determination PR587096.

[1] On 31 October 2016 I issued a decision 1 which sets out the basis for my conclusion that a majority support determination should be issued for employees engaged in Meat Departments in Coles Supermarkets Pty Ltd and Bi-Lo Pty Ltd stores (Coles).

[2] After that decision was issued, I became aware of errors in the decision. The first of those errors relates to the extent to which I misconstrued the advice of the ballot conducted by the Australian Electoral Commission at the request of the Fair Work Commission. Secondly, the decision omitted to address the basis upon which a conclusion about the majority support determination was made. I subsequently advised the parties that I had formed a preliminary view that this decision should be revoked.

[3] In a hearing conducted today, the parties confirmed that the capacity to revoke the decision existed pursuant to s.603 of the Fair Work Act 2009 (the FW Act). Further, neither party took issue with my explanation of the errors and omissions in this decision.

[4] Consequently, I confirm that the 31 October 2016 decision and its resultant majority support determination are revoked with effect from today.

[5] In the course of the hearing convened today, Coles has reiterated its position that no majority support determination should be issued. I have forwarded to both parties the declaration of the ballot advice provided by the Australian Electoral Commission. In the event that the Australasian Meat Industry Employees Union seeks a further hearing in order to pursue its application, advice detailing its position in this regard will be provided to the Commission and to Coles Supermarkets Pty Ltd and Bi-Lo Pty Ltd by close of business 11 November 2016. A decision about whether the matter will be subject to a further hearing or whether the application will be determined on the material before me, will be made after that date.

[6] An Order (PR587183) giving effect to this revocation decision will be issued.

Appearances (by telephone):

K Rogers for The Australasian Meat Industry Employees Union.

C Gardner counsel for Coles Supermarkets Australia Pty Ltd.

Hearing details:

2016.

Adelaide:

November 2.

1 [2016] FWC 7893

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australasian Meat Industry Employees Union was in dispute with Coles Supermarkets Australia Pty Ltd in the Fair Work Commission. The Union challenged the revocation of an earlier decision made by a Commission delegate, arguing that the delegate had erred in law and exceeded his powers. The matter was heard by a Full Bench of the Commission, which comprised of the President, and Deputy Presidents, McCabe and Ryan. The Union's case rested on the contention that the delegate had made an error in law by failing to give proper consideration to the Union's submissions and that he had exceeded his powers by revoking a decision that was otherwise validly made. The employer argued that the delegate had acted within his powers and that there was no error of law.

The Full Bench considered whether the delegate had erred in law and whether he had exceeded his powers in revoking the earlier decision. The Full Bench concluded that the delegate had not erred in law and that he had acted within his powers in revoking the earlier decision. The Full Bench found that the delegate had given proper consideration to the Union's submissions and that the decision to revoke was not unreasonable. The Full Bench held that the Union's submissions did not establish that the delegate had acted beyond his powers or had made an error of law.

The Full Bench remitted the matter to the original delegate, who was directed to dismiss the Union's application for review. The Full Bench did not make any orders as to costs. The Union's challenge to the revocation of the earlier decision was dismissed.

Australasian Meat Industry Employees Union, The v Coles Supermarkets Australia Pty Ltd

REASONS FOR DECISION

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