No judgment structure available for this case.

[2016] FWC 7776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

s.603—Application to vary or revoke a decision of the FWC

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Top Cut Food Industries Pty Ltd T/A Top Cut Food Industries
(B2016/565)

COMMISSIONER RYAN

MELBOURNE, 27 OCTOBER 2016

Revocation of majority suppoprt determination issued re employees of Top Cut Foods Pty Ltd - 20 Gilbertson Rd Laverton North Victoria.

[1] This decision relates to an exercise by the Fair Work Commission (the Commission) of its powers pursuant to s.603 of the Fair Work Act 2009 (the Act) to revoke the majority support determination 1 and decision2 issued by the Fair Work Commission on 8 June 2016.

[2] Section 603 of the Act empowers the Fair Work Commission to vary or revoke a decision made under the Act (with certain exceptions), either on its own motion or on application by a person affected by the decision. It provides as follows:

“603 Varying and revoking the FWC’s decisions

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or
(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.

(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:

(a) a decision under Part 2-3 (which deals with modern awards);
(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);
(c) a decision under Part 2-5 (which deals with workplace determinations);
(d) a decision under Part 2-6 (which deals with minimum wages);
(e) a decision under Division 3 of Part 2-8 (which deals with transfer of business);
(f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots);
(g) a decision under section 472 (which deals with partial work bans);
(h) a decision that is prescribed by the regulations.

Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).”

The original application

[3] An application pursuant to s.236 of the Act was made on 23 May 2016 by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU). The application named the employing entity (the employer to be covered by the proposed agreement) as Top Cut Foods Pty Ltd.

[4] For reasons which are not clear, the file in B2016/565 was made up by the Commission with the respondent named on the file as “Top Cut Food Industries Pty Ltd”, however with the descriptor that the matter related to “employees of Top Cut Foods Pty Ltd”. All written communications between the Commission and the parties in relation to this application used that descriptor.

[5] On 8 June 2016 I determined that, on the basis of petitions supplied by the AMWU and The Australasian Meat Industry Employees Union (AMIEU) and a list of employees supplied by Top Cut Foods Pty Ltd, there was a majority of employees of Top Cut Foods Pty Ltd who wanted to bargain for an agreement and issued a majority support determination 3 (the MSD).

The application by the AMWU to vary the MSD

[6] On 29 August 2016 the AMWU filed an application pursuant to s.603 to vary the majority support determination issued on 8 June 2016 (the Application to Vary). The Application to Vary sought that the MSD be varied by:

“1. Immediately after the name of the respondent as it currently appears in the title of the Determination, adds “and Caterfare Pty Ltd”.

2. In paragraph [2], deletes “Top Cut Foods Pty Ltd” and substitutes “Top Cut Food Industries Pty Ltd and Caterfare Pty Ltd“.

3. In paragraph [3], alters the date therein to the date this order is made.”

and cited the following grounds in support of its application:

“a. The Determination was made on the basis of false and incomplete information (see Grabovsky [2015] FWC 5161 per Ross P at [38]).

b. The respondents are “single interest employers” as that term is used in the FW Act, s 172(5), in respect of their businesses operated at the Plant because:

i. The respondents are engaged in a common enterprise; and

ii. Further or in the alternative, they are related bodies corporate.

For these reasons, it would have been open to the Commission in the Application to issue a majority support determination in the terms as proposed by this application.

c. It would be unfair to require the applicant to make a fresh application for a majority support determination because in the Application:

i. The respondents’ representative did not inform the applicant or the Commission of any issue going to the identity of the employers of the relevant employees; and

ii. Apart from the mistake as to the identity of the employers of the relevant employees, the Application was sound.”

[7] On 31 August 2016, Mr Michael Mead of The Australian Industry Group (Ai Group) wrote to the Commission objecting to the AMWU’s Application to Vary.

[8] In essence, the Ai Group contended that the MSD issued on 8 June 2016 reflects the terms of the application sought by the AMWU and that the outcome sought by the AMWU through the variation to compel two single-interest employers to bargain is an outcome which it did not seek at first instance.

[9] Further, Ai Group contended that “both entities, although related entities of Top Cut Foods Pty Ltd, are separate and distinct legal entities – and accordingly strangers to the proceedings at first instance. It would be unfair and inappropriate to grant a variation to the Determination which will have the effect of impacting their legal rights and obligations in circumstances where neither Top Cut Industries or Caterfare were named as parties in the original application.”

[10] On 2 September 2016 I caused my Associate to write to parties indicating my intention to deal with the Application to Vary by way of hearing.

[11] The Commission was advised by the AMWU on 6 September 2016 that parties were in negotiations and requesting that the matter not proceed further until further notice.

[12] On 14 October 2016 the AMWU discontinued the Application to Vary. At the same time the AMWU filed a new s.236 application in relation to employees engaged by Top Cut Food Industries Pty Ltd and Caterfare Pty Ltd (B2016/1098). On the same day the AMIEU filed an application pursuant to s.236 in identical terms as the AMWU’s application (B2016/1100).

Revocation of the MSD on the Commission’s own motion

[13] I wrote to the parties on 14 October 2016 in the following terms:

“The Commission, acting on its own initiative, proposes to revoke the Decision ([2016] FWC 3739) and Determination (PR581400) issued in this matter on 8 June 2016.

If the decision and determination are revoked, then the Commission will need to deal with the original application (unless the original application is discontinued as a result of a revocation decision being issued).

The Form F1 (Application to Vary the Determination) which was filed in this matter on 29 August 2016 by the AMWU and the new application for a majority support determination filed in Matter B2016/ 1098 both disclose a course of conduct by each of the AMWU and Top Cut Foods P/L which, whilst not meaning to do so, has led the Commission to decide an application for a majority support determination and to issue a majority support determination against an entity which was not the employer of the employees who were identified as wanting to bargain for an enterprise agreement.

Each of the AMWU and Top Cut Foods P/L is entitled to make submissions and lead any evidence relevant to a determination of the revocation matter initiated by the Commission.

The parties are to advise the Commission as to the following:

Do you want to make submissions or lead evidence in relation to the revocation matter?
Do you want to be heard in relation to the revocation matter?
Do you want the revocation matter to be dealt with on the papers?
If a hearing on the revocation matter is required, when would you prefer such a hearing to take place?
If a revocation decision is issued, how do you see the original application being dealt with by the Commission?

Your response to each of the five questions is sought by close of business on Friday 21 October 2016.”

The parties were subsequently granted an extension to file their responses, to 26 October 2016.

[14] The parties, jointly, advised the Commission on 26 October 2016 that they do not wish to make submissions or lead evidence in relation to the revocation matter; that they do not want to be heard in relation to the revocation matter and that they want the revocation matter determined on the papers. Further, they advised that in the event that a revocation decision is issued, that matter B2016/565 would be discontinued by the AMWU given that there is an application on foot (B2016/1098) which correctly identifies the relevant employing entities.

Consideration

[15] There are no legislative criteria prescribing when or how the power provided for in s.603 should be exercised. Therefore it is a discretionary decision. Some guidance however can be found in a decision of President Ross in Grabovsky v United Protestant Association of NSW Ltd 4 wherein he said:

“[38] The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise.” [citations removed]

[16] The circumstances in this matter are that the Commission made the MSD based on incorrect information. The application wrongly identified the employing entity and this error was compounded by Top Cut Foods Pty Ltd supplying a list of employee names to the Commission which was not a list of employees employed by Top Cut Foods Pty Ltd but rather was a list of employees of a completely different legal entity.

[17] I accept that there was no intention by either party to mislead the Commission and as such no criticism can be levelled at either side in this matter.