Australian Workers' Union v Berry Pays Pty Ltd

[2021] FWCFB 6068

[2021] FWCFB 6068

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Australian Workers’ Union
v
Berry Pays Pty Ltd and Others
(C2021/7274)

DEPUTY PRESIDENT MASSON
COMMISSIONER O’NEILL
COMMISSIONER MIRABELLA MELBOURNE, 15 DECEMBER 2021

Appeal against decision [2021] FWCA 6256 of Deputy President Boyce at Sydney on 13 October 2021 in matter number AG2021/7580.

[1] The Australian Workers’ Union (the Appellant) has applied for permission to appeal and has appealed against a decision 1 of Deputy President Boyce, issued on 13 October 2021 (the Approval Decision), to approve the Berry Pays Pty Limited Enterprise Bargaining Agreement 2021 (the Agreement).

[2] Section 604(1) of the Fair Work Act 2009 (the Act) permits a “person aggrieved” to make an application for permission to appeal a decision of the Fair Work Commission (the Commission). We are satisfied that the Appellant is such a person in relation to the Approval Decision.

[3] In the notice of appeal lodged on 29 October 2021, the Appellant set out two grounds of appeal which may be summarised as follows:

(1) the Deputy President erred in finding that the Agreement passed the better off overall test (the BOOT) as against the reference instrument, the Horticulture Award 2020 (the Award) in satisfaction of s.186(2)(d); and

(2) the Deputy President erred in finding that the employer complied with the obligations in s.180(5) where the matters set out in relation to Ground 1 of the appeal were not explained, or properly explained to employees and where the employer advised employees that the terms and conditions of the Agreement were “largely the same” as those of the Award.

[4] The hearing of the appeal was set down for 14 December 2021 in advance of which the parties filed submissions and material in accordance with the directions of the Commission. At the hearing, the Appellant was represented by Mr A Sage, the Appellant’s Head of Legal and Policy. Mr Healy of Counsel sought permission to appear on behalf of Berry Pays Pty Ltd (the Respondent), which was not opposed by the Appellant. Permission was granted to Mr Healy pursuant to s.596(2)(a) of the Act on the basis that the matter was invested with sufficient complexity, such that it would be dealt with more efficiently if permission to be represented was granted.

[5] At the commencement of the hearing on 14 December 2021, the Respondent advised the Commission that they had conferred with the Appellant in advance of the hearing in respect of a consent position in relation to the disposition of the appeal. A final consent position had not been reached prior to the hearing. However, after some discussion with the Full Bench and following a brief adjournment, a consent position was reached between the parties. The essence of the consent position, subsequently confirmed by both parties in correspondence forwarded to the Commission on 14 December 2021, is to the effect that permission to appeal be granted, the appeal be upheld, the Approval Decision appealed against be quashed and the application for approval of the Agreement be dismissed.

[6] We consider that it is appropriate that we make the order in the terms agreed between the parties. The consent order aligns with the conclusion that we would otherwise have reached but for the settlement.

Conclusion

[7] By consent, we order that:

1. Permission to appeal is granted;

2. The appeal is upheld;

3. The Decision ([2021] FWCA 6256) is quashed;

4. The application for approval of the Berry Pays Pty Limited Enterprise Bargaining Agreement 2021 (AG2021/7580) is dismissed; and

5. No order as to costs.

DEPUTY PRESIDENT

Appearances:

A Sage, Applicant.

MD Healy of Counsel for the Respondent.

Hearing details:

2021.

Melbourne, Sydney, and Brisbane (by Microsoft Teams):

December 14.

Printed by authority of the Commonwealth Government Printer

<PR736770>

 1   [2021] FWCA 6256.