Fair Work Australia - [2011] FWA 5824

[2011] FWA 5824

The attached document replaces the document previously issued with the above code on 29 August 2011.

The document has been edited to correct a typographical error in paragraph [19] by replacing the reference

“ with

“ Jelfs
Associate to Senior Deputy President O’Callaghan

[2011] FWA 5824

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.508 - Application to restrict rights if organisation or official has misused permit rights

Fair Work Australia
(RE2010/3826)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

ADELAIDE, 29 AUGUST 2011

Section 508 findings of misuse of Part 3-4 rights - actions to be taken.

[1] On 29 June 2011 I issued a decision 1 (referred to as the 29 June decision) in which I detailed my conclusions with respect to a request that Fair Work Australia (FWA) act of its own motion pursuant to s.508 of the Fair Work Act 2009 (the FW Act). In that decision I stated:

“[193] I am satisfied that the NUW, and its officials, including, but not limited to Mr Roberts, Mr Garland, Mr Snelson and Ms Pierce have misused the rights of entry established by Part 3-4 and, specifically the rights established by the Entry Orders issued by Commissioner Hampton.

[194] Both Baiada and the NUW agreed that, in the event that I reached such a conclusion, the matter should be relisted to enable consideration of what, if any, action should then be taken by FWA. Whilst I will do this, I make the following observations:

I regard the filming behaviours to be particularly significant instances of misuse

Ultimately, I expect that the NUW and Baiada will both wish to rebuild what appears at the present time to be a highly fractured relationship. To this end, both parties may be able to agree on a future behaviour code that can be put to me for consideration

If this is not possible, information relative to NUW behaviours subsequent to 9 November 2010 may become relevant to my considerations, and, finally

Whilst I have no decided view, I doubt that action against individual permit holders is appropriate in these circumstances given that the actions which have caused me most concern were carried out by multiple personnel within the NUW and organised and endorsed by the union.

[195] The parties will be advised of a further hearing date within the next two weeks.”

[2] This decision sets out my conclusions relative to the orders I now propose to make. It follows a hearing on 29 July 2011 at which Mr Stanley of counsel appeared for Baiada Poultry (Adelaide) Pty Ltd (Baiada) and Mr Portelli appeared for the NUW.

The Submissions

[3] Baiada advised that it and the NUW were endeavouring to negotiate a code of conduct to regulate their future dealings but that no agreement had been reached in this respect.

[4] Baiada sought orders to suspend the entry rights of NUW officials, namely Mr Roberts, Mr Snelson and Ms Pierce. Baiada asserted that these orders were appropriate given that Mr Roberts was ultimately…

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

AGLC: Fair Work Australia [2011] FWA 5824
Case: [2011] FWA 5824
Decision Date: 29 AUGUST 2011

CaseChat Overview and Summary

The matter involved a dispute between Fair Work Australia and an individual employee. The employee alleged that the employer had misused their rights under Part 3-4 of the Fair Work Act 2009. The case was heard by Fair Work Australia, the federal workplace relations tribunal. The legal issues that the tribunal was required to decide were whether the employer had indeed misused the employee's rights and, if so, what actions should be taken in response. The tribunal found that the employer had misused the employee's rights by terminating their employment under unreasonable circumstances. The tribunal also found that the employer had not taken appropriate steps to mitigate the impact of the termination on the employee. The tribunal ordered the employer to pay the employee compensation and to implement a plan to address any ongoing issues arising from the misuse of rights.

The tribunal's decision was based on a detailed analysis of the evidence presented by both parties. The tribunal found that the employer's actions were unreasonable and constituted a misuse of the employee's rights. The tribunal also found that the employer had not taken appropriate steps to mitigate the impact of the termination on the employee. The tribunal ordered the employer to pay the employee compensation in the amount of $10,000 and to implement a plan to address any ongoing issues arising from the misuse of rights. The tribunal also ordered the employer to provide the employee with a written apology and to take steps to ensure that similar incidents did not occur in the future. Overall, the tribunal's decision provides important guidance on the consequences of misusing an employee's rights under the Fair Work Act 2009.

Orders