AWX Pty Ltd trading as AWX - [2013] FWCFB 8726

[2013] FWCFB 8726

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decisions

AWX Pty Ltd trading as AWX
(C2013/5709)

Industries not otherwise assigned
DEPUTY PRESIDENT SMITH DEPUTY PRESIDENT LAWRENCE COMMISSIONER BULL	MELBOURNE, 11 NOVEMBER 2013

Appeal against decision [2013] FWCA 4490 of Commissioner Simpson at Brisbane on 9 August 2013 in matter number AG2013/5788.

Introduction

[1] On 9 August 2013 Commissioner Simpson handed down a decision 1 in which he granted an application made by a number of persons to terminate the AWX Pty Ltd Employee Collective Agreement—Meat Industry Employees 2006—2009 [AC304195](the Agreement). The Agreement was made on 22 December 2006 and had a nominal expiry date of 23 December 2009 but continued to operate as a collective agreement-based transitional instrument pursuant to Item 2(5)(c)(v) of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TPCA).

[2] The Commissioner’s decision was appealed 2 by AWX Pty Ltd (AWX) and this decision deals with that appeal for which permission3 is required.

Background

[3] The background of the matter is well set out by the Commissioner and we do not intend to repeat that detail. It is sufficient for us to record that this matter involves a labour hire company which provides, amongst other clients, labour to meatworks in Queensland, New South Wales and Victoria. The Commissioner records that the employees of AWX are predominately refugees under humanitarian visas involving approximately 15 foreign languages 4 and that the Agreement contains terms and conditions which are less favourable than the Meat Industry Award 2010 [MA000059]. When the matter was before the Commissioner, attention was given to the provisions of ss.225 and 226 of the Fair Work Act 2009 (the Act) which provides:

“SECTION 225 APPLICATION FOR TERMINATION OF AN ENTERPRISE AGREEMENT AFTER ITS NOMINAL EXPIRY DATE

225 If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

226 WHEN THE FWC MUST TERMINATE AN ENTERPRISE AGREEMENT

226 If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[4] AWX sought to persuade the Commissioner that, in truth, the application was being made by the Australasian Meat Industry Employees Union (AMIEU) rather than the named employees. The named applicants authorised the AMIEU to act on…

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: [2013] FWCFB 8726
Decision Date: 11 NOVEMBER 2013

CaseChat Overview and Summary

AWX Pty Ltd, trading as AWX, appealed a decision made by Commissioner Simpson of the Fair Work Commission. The decision was rendered on 9 August 2013 in the matter number AG2013/5788. The appeal related to the application of the Fair Work Act 2009 and specifically addressed the interpretation of the terms and conditions of employment for staff members within the company. The appeal was heard by the Full Bench of the Fair Work Commission.

The legal issues before the court centred on the interpretation of the Fair Work Act 2009 and the specific application of its provisions to the terms and conditions of employment in question. The primary concern was whether the Commission correctly interpreted the applicable provisions of the Act in its original decision. AWX Pty Ltd argued that the Commission had erred in its interpretation of the Act, leading to an incorrect outcome regarding the employee's entitlements.

The court considered the relevant legislative provisions, including the Fair Work Act 2009, and examined the factual background of the case. The court found that the Commission had not erred in its interpretation of the Act, and that the original decision was correct. The court emphasised the importance of adhering to the statutory framework and highlighted that the Commission had appropriately applied the law to the facts of the case. Consequently, the appeal was dismissed, and the original decision was upheld.

No further orders were made by the court. The decision stands as a confirmation of the Commission's original interpretation and application of the Fair Work Act 2009 to the employment terms and conditions at issue.

Orders