AWX Pty Ltd trading as AWX

[2013] FWC 6294

[2013] FWC 6294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decisions

AWX Pty Ltd trading as AWX
(C2013/5709)

Meat industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 30 AUGUST 2013

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

[1] This is an application by AWX Pty Ltd to stay a decision [[2013] FWCA 4490] of Commissioner Simpson handed down on 9 August 2013.

[2] The effect of the Commissioner’s decision was that the AWX Pty Ltd Employee Collective Agreement—Meat Industry Employees 2006—2009 [AC304195] (the Agreement)be terminated from 2 September 2013. The Meat Industry Award 2010 [MA000059] (the Award) would apply to employees previously covered by the Agreement from that date.

[3] The appeal is listed for hearing before a Full Bench of the Fair Work Commission in Brisbane on Thursday, 3 October 2013.

[4] Section 606(1) of the Fair Work Act 2009 (the Act) provides that:

“If, under section 604 and 605, FWC hears an appeal from, or conducts a review of, a decision, FWC may (except as provided in subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that FWC considers appropriate, until a decision in relation to the appeal or review is made or FWC makes a further order.”

[5] Before a stay order is granted the Commission is required to be satisfied that an arguable case exists and that the balance of convenience favours the granting of a stay. The conventional test for granting a stay order was considered by Vice President Ross (as he then was) in Kellow-Faulkner Motors Pty Ltd v Edge Hill. 1 That approach was subsequently confirmed by a Full Bench.2

[6] Mr Murdoch, on behalf of the appellant, argued that the Commissioner erred in law in a number of respects, including with respect to the operation of s.226 of the Act.

[7] The appeal also raises a number of important issues, in Mr Murdoch’s submission, as to the way the Commissioner dealt with the ballot process, the financial impact of the termination of the agreement and the operative date of the decision.

[8] Mr Dalgleish, on behalf of the Australasian Meat Industry Employees Union (AMIEU) argued that there is no prospect of success for either leave to appeal or the substantive merits of the appeal. In his submission, Commissioner Simpson made no error which is likely to be corrected on appeal.

[9] I find there is an arguable case which should be determined by the Full Bench.

[10] The balance of convenience favours staying the decision because this would be maintenance of the status quo in terms of wages and conditions and other employment arrangements pending the hearing of the appeal in a month’s time. To do otherwise, in this case, would create potential confusion when the Full Bench will decide the matter in a relatively short time frame.

[11] It is also important that employees not be disadvantaged. The appellant has offered an undertaking to the following effect in the event that a stay is granted:

“In this matter the appellants gave an undertaking that in the event the decision was stayed, that in relation to employees who received a pay rise out of the application of the award, all appropriate records of hours of work, penalty rates and so on would be kept and proper accounting procedures established to ensure the outstanding monies would be paid if the decision remains in force.”

[12] Mr Dalgleish countered with a similar but more specific “no disadvantage clause”.

[13] I have decided that the following will be a requirement and be part of the order accompanying this decision:

1. The operation of the whole of the decision [[2013] FWCA 4490] of Commissioner Simpson made at Brisbane on 9 August 2013 in matter number AG2013/5788 be stayed.

2. In order to ensure workers will not be disadvantaged until the hearing and determination of the appeal, AWX Pty Ltd is required to maintain for each employee who is paid under the AWX Pty Ltd Employee Collective Agreement-Meat Industry Employees 2006—2009 (the Agreement) a reconciliation, which records work performed under the agreement in the stay period, and establishes whether the employee’s total remuneration during the period is less than the employee would have received under the Meat Industry Award 2010 [MA000059] (the Award).

3. Where a reconciliation establishes that an employee has been paid less under the Agreement than the employee would have been paid for performing the same work under the Award, the employee will be reimbursed for the difference, plus interest, within the next pay cycle should the appellant be unsuccessful.

4. AWX Pty Ltd will also keep a record, including forwarding details, of any employee who resigns or otherwise leaves its employment before the Full Bench decision is handed down

[14] An order 3 giving effect to this decision will issue.

DEPUTY PRESIDENT

Appearances:

J.E. Murdoch of counsel with C. Mossman, solicitor for AWX Pty Ltd.

E. Dalgleish for the Australasian Meat Industry Employees Union.

Hearing details:

2013.

Sydney and Brisbane (via Video Link):

August, 29.

 1   Print S2639

 2   Print S4216

 3   Print PR540941

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<Price code A, AC304195  PR540936 >