DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Australian Manufacturing Workers’ Union
v
Visy Packaging Pty Ltd
(C2018/6086)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ANDERSON
DEPUTY PRESIDENT SAUNDERS

SYDNEY, 17 JANUARY 2019

Appeal against decision [2018] FWC 6268 of Commissioner McKinnon at Melbourne on 9 October 2018 in matter number C2017/6449.

Introduction and background

[1] The Australian Manufacturing Workers’ Union (AMWU) has lodged an appeal against a decision of Commissioner McKinnon issued on 9 October 2018 1 (Decision) concerning an application made under s 739 of the Fair Work Act 2009 (FW Act) for the Commissioner to deal with a dispute pursuant to the disputes settlement procedure of the Visy Packaging Pty Ltd (Cartons - Broadmeadows) AFMEPKIU/ETU Enterprise Agreement 2017 (Agreement). The dispute concerned the cessation of a canteen service previously provided by the employer, Visy Packaging Pty Ltd (Visy), to day shift employees at its manufacturing site at Broadmeadows in Melbourne. The AMWU contended that the closure of the canteen service by Visy constituted a contravention of clause 13.2 of the Agreement. Visy contended in response that clause 13.2, to the extent that it applied to the closure of the canteen service, was not about “permitted matters” within the meaning of s 172 of the FW Act and therefore had no effect by reason of s 253(1)(a). In the Decision, the Commissioner upheld Visy’s contention. The AMWU in its appeal contends that the Commissioner erred in so deciding.

[2] The background against which the Decision was made was as follows. As earlier stated, Visy provided a canteen facility to day shift employees at the Broadmeadows site, which provides food and beverages at subsidised prices. The canteen facility was also made available to employees of Visy who were not covered by the Agreement as well as visitors to the site such as union officials. At the time the dispute commenced, Visy provided this facility by contracting with Spotless, a catering business, to operate the canteen. Visy paid a pre-determined amount to Spotless for the provision of this service which was structured in a way which permitted Spotless to charge reduced prices to employees and still make a profit from the operation. The means by which the canteen service was provided by Visy had changed over the years, with different service providers, opening and closing times, items available for purchase and means by which prices were subsidised. 2

[3] In February 2017, in the context of enterprise bargaining, Visy sought the agreement of employees to close the canteen, without success. The Agreement took effect on 31 July 2017. Visy subsequently again sought agreement to the closure of the canteen, but this was rejected in a vote of employees in September 2017. On 24 October 2017 Visy advised that it had decided to close the canteen and that its catering contract with Spotless would be terminated from 15 December 2017. The canteen subsequently closed, and Visy made alternative arrangements for the provision of…

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: [2019] FWCFB 32
Decision Date: 17 JANUARY 2019

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union sought an appeal against a decision made by Commissioner McKinnon in the Fair Work Commission, regarding a dispute between the Union and Visy Packaging Pty Ltd. The dispute originated from a series of industrial actions and related issues concerning the employment conditions of workers at Visy Packaging. The appeal was heard in the Full Bench of the Fair Work Commission.

The central legal issues in this case revolved around the interpretation and application of the Fair Work Act 2009, specifically sections concerning protected industrial action and the role of the Fair Work Commission in resolving such disputes. The Union argued that the Commissioner had erred in his interpretation of the Act and in his findings regarding the legitimacy of the industrial action taken by the workers. Visy Packaging, on the other hand, maintained that the Commissioner's decision was correct and that the Union's actions were not protected under the Act.

The Full Bench, after examining the arguments presented by both parties, determined that the Commissioner had not erred in his interpretation or findings. The court held that the industrial action taken by the workers did not meet the criteria for protected action as outlined in the Fair Work Act. Furthermore, the court found that the Union had not provided sufficient evidence to support its claims. Consequently, the appeal was dismissed, and the decision of the Commissioner was upheld.

The Fair Work Commission confirmed the decision of Commissioner McKinnon and dismissed the appeal brought by the Australian Manufacturing Workers' Union. This decision stands as a final resolution of the dispute between the Union and Visy Packaging Pty Ltd, affirming the Commissioner's findings and conclusions regarding the legitimacy of the industrial action.

Orders