[2014] FWCFB 7946
DECISION
| Fair Work Act 2009 | |
| s.604 - Appeal of decisions | |
| DL Employment Pty Ltd | |
| v | |
| Australian Manufacturing Workers' Union | |
| (C2014/4486) | |
| VICE PRESIDENT HATCHER | |
| DEPUTY PRESIDENT BOOTH | |
| COMMISSIONER MCKENNA | SYDNEY, 1 DECEMBER 2014 |
Appeal against decisions of Senior Deputy President Drake at Sydney on 28 April 2014 in transcript, 8 July 2014 and 4 August 2014 in matter number C2014/289.
Introduction
[1] This is an appeal against a decision of Senior Deputy President Drake issued on transcript on 28 April 2014 (First Decision), a decision published on 8 July 2014 giving
reasons for the First Decision[1](Second Decision), and a further decision giving further
reasons for the First Decision published on 4 August 2014[2](Third Decision). These decisions were made by the Senior Deputy President as a result of the conduct of an arbitration to resolve a dispute pursuant to the disputes settlement procedure in clause 6.3 of the DL
Employment Pty Ltd Enterprise Bargaining Agreement 2012-2015 (DLE Agreement). That
dispute concerned whether DL Employment Pty Ltd (DLE) should pay redundancy entitlements to a number of employees who declined to comply with DLE’s direction for them to relocate to its new production plant at Ingleburn upon the closure of its existing plant at Kogarah. The Senior Deputy President determined that six employees - Mark McNeil, Stephen Perry, Joseph Atalifo, Blagoja Stueski, Blaga Mirceska and Paul Gioffre (Claimant Employees) - were entitled to redundancy pay. DLE’s appeal essentially challenged that outcome.
Factual background
[2] The dispute had its origins in the circumstances in which DLE employed a number of persons who had formerly been employed by Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) in 2012. Darrell Lea was a well-known Australian manufacturer and retailer of renowned confectionary products such as Rocklea Road, chocolate nougat Easter eggs and soft-eating liquorice. As at August 2012, Darrell Lea operated its manufacturing facility at 200 Rocky Point Road, Kogarah in New South Wales (with an associated facility at 160 Rocky Point [2014] FWCFB 7946
Road), and operated a warehousing facility at 3 Brooks Road Ingleburn. Darrell Lea’s employees were covered by the Darrell Lea Chocolate Shops Pty Ltd Collective Agreement
2009-2012 (Darrell Lea Agreement). Clause 2.A of the Darrell Lea Agreement prescribed the
scope of coverage of the agreement as follows:
“2.A APPLICATION
This Agreement shall apply at Darrell Lea Chocolate Shops Pty Ltd to all employees engaged at and from 160 and 200 Rocky Point Road, Kogarah NSW 2217 and 3 Brooks Road, Ingleburn NSW 2565 who, would have, but for the existence of this Agreement been covered by any of the following Modern Awards:
a) Food, Beverage and Tobacco Manufacturing Award 2010; b) Manufacturing and Associated Industries and Occupations Award 2010; and c) Miscellaneous Award 2010;
d) Storage Services and Wholesale Award 2010.” [3] Clause 2.E(f) of the Darrell Lea Agreement provided:
“f) Existing over award payments and conditions of employment shall continue to apply as if they were a term of this…
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- [2014] FWCFB 7946
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