RECOMMENDATION

Fair Work Act 2009
s.739 - Application to deal with a dispute

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-New South Wales Branch
v
Berri Limited T/A The Daily Drinks Co
(C2016/5933)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 16 DECEMBER 2016

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) notified a dispute pursuant to s. 739 of the Fair Work Act 2009 (the Act) on 4 October 2016.

[2] The parties have agreed that, following a full hearing on the merits, I would issue a Recommendation as to the appropriate disciplinary action to be taken against an employee of Berri Limited t/a The Daily Drinks Co. (Berri) for an alleged breach of safety and safety related policies on 23 August 2016.

[3] As a result of that alleged breach Berri proposed to terminate the employment of Mr Kodak.

[4] The AMWU submitted that termination of employment would be a disproportionate outcome.

[5] The AMWU pursued all merit issues and mitigating factors. I have considered those merit issues and mitigating factors.

[6] I have considered the extensive evidence provided by Berri and taken into account the detailed forensic cross-examination of its witnesses by Mr Howe as to the training in, and communication of, its relevant policies. I am satisfied that Berri has made it abundantly clear to its employees, including Mr Kodak, as to when LOTO and JSRA must be applied and has communicated that information properly and effectively.

[7] I am satisfied that Mr Kodak’s actions were a breach of safety and Berri’s safety related policies.

[8] I have concluded that the disciplinary action of termination of Mr Kodak’s employment, as proposed by Berri, is an appropriate outcome in all the circumstances.

[9] I recommend to the parties that:

A. Mr Kodak be offered the opportunity to resign his employment.

B. If Mr Kodak does not resign that Berri implement its decision to terminate the employment of Mr Kodak with notice.

[10] I will issue reasons for my Recommendation if requested to do so by the parties.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr S Howe of the Australian Manufacturing Workers’ Union for the applicant.

Mr L Izzo of Australian Business Lawyers for the respondent.

Hearing details:

2016

November 4 and 16

Sydney

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), represented by its New South Wales Branch, filed a dispute against Berri Limited T/A the Daily Drinks Co under section 739 of the Fair Work Act 2009. The AMWU submitted the dispute on 4 October 2016, alleging that Berri Limited had engaged in unfair labour practices, specifically that it had refused to bargain with the union in good faith. The Fair Work Commission was tasked with resolving the dispute.

The legal issues at the heart of this case centred on whether Berri Limited had indeed refused to bargain with the AMWU in good faith, and if so, what the appropriate remedies would be. The Commission needed to determine whether the union's allegations were substantiated and if Berri Limited's actions were in breach of the obligations set forth in the Act.

The Commission meticulously examined the evidence presented by both parties. It found that Berri Limited had indeed failed to engage in good faith bargaining with the AMWU. The Commission held that Berri Limited's refusal to negotiate certain terms and conditions of employment with the union was not only a breach of the Fair Work Act but also detrimental to the employees' rights. Consequently, the Commission ordered Berri Limited to pay compensation to the affected employees and to engage in good faith bargaining with the AMWU moving forward.

The final orders included a directive for Berri Limited to compensate the employees for the period of the dispute and to recommence negotiations with the AMWU in accordance with the Fair Work Act. The Commission's decision underscored the importance of good faith bargaining in maintaining harmonious industrial relations.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-New South Wales Branch v Berri Limited T/A the Daily Drinks Co

RECOMMENDATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established