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DL Employment Pty Ltd v AMWU

DL Employment Pty Ltd v AMWU

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[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

[1][2014] FWC 3877

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

[2][2014] FWC 4914

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…

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: [2014] FWCFB 7946
Decision Date: 1 DECEMBER 2014

CaseChat Overview and Summary

DL Employment Pty Ltd (DLE) appealed against decisions of the Senior Deputy President Drake that six employees were entitled to redundancy payments, as a result of the closure of DLE’s production facility at Kogarah and its decision for those employees to transfer to its new plant at Ingleburn. The employees declined to transfer and were dismissed. The employees were previously employed by Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) and, when DLE acquired the business, the Darrell Lea Agreement applied to DLE and its employees until superseded by the DLE Agreement. The Senior Deputy President found that the employees were entitled to redundancy payments because their jobs had become redundant and DLE had not offered them reasonable alternative employment. The appeal raised questions of the interpretation of the Darrell Lea Agreement and the DLE Agreement, and whether the Senior Deputy President erred in finding that the employees were not required to transfer to Ingleburn and that they were entitled to redundancy payments. The Full Bench found no error in the Senior Deputy President’s determination that the employees were entitled to redundancy payments. The Full Bench held that the Location Term, which required employees to work at Ingleburn, was an extra claim under the Darrell Lea Agreement and was inoperative. The Full Bench also held that the closure of the Kogarah plant and the direction to the employees to transfer to Ingleburn amounted to a repudiation of their contracts of employment. Accordingly, the Full Bench dismissed the appeal and referred the matter to the Senior Deputy President for the making of a final determination or final orders.

Orders