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FP Group Pty Ltd v Tooheys

FP Group Pty Ltd v Tooheys

Case [2013] FWCFB 9605 17 December 2013

Appeal

Jurisdiction

Unconscionable Conduct

Employment & Labour Law

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[2013] FWCFB 9605

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

FP Group Pty Ltd
v
Tooheys Pty Ltd
(C2013/5651)

VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
COMMISSIONER RIORDAN

SYDNEY, 17 DECEMBER 2013

Appeal against decision [2013] FWC 2813 of Deputy President Sams at Sydney on 31 July 2013 in matter numbers U2011/15073; U2012/176; U2012/177; U2012/178; U2012/179; U2012/180; U2012/181; U2012/182; U2012/183; U2012/184; U2012/185; U2012/186; U2012/187; U2012/200; U2012/201; U2012/203; U2012/204; U2012/4104; U2012/4341; U2012/4631.

Introduction

[1] This appeal by FP Group Pty Ltd (FP Group) against a decision of Deputy President Sams issued on 31 July 2013 1 (Decision) was heard by us on 18 November 2013. Having heard FP Group’s submissions, we announced that we had decided to refuse permission to appeal and would issue our full reasons for that decision in writing at a later time. This decision sets out those reasons.

[2] The proceedings before the Deputy President arose out of applications for unfair dismissal remedies lodged by ten persons, Brian Henry, David Hulbert, Graeme Robinson, George Wilczewski, Andrew Sands, Ian Luke, David Blackley, Dennis Llagas, Bruce Hancock and Mark Coombes (the applicants). Unusually, each applicant lodged two unfair dismissal remedy applications - one nominating FP Group as the employer, and the other nominating Tooheys Pty Ltd (Tooheys) as the employer. FP Group and Tooheys each made a jurisdictional objection to the application made against them on the basis that the other had, prior to dismissal, been the actual employer of the applicants. These jurisdictional objections having been allocated to the Deputy President for hearing, the question he had to determine was whether FP Group or Tooheys had been the employer of the applicants at the time of dismissal. The Deputy President determined that FP Group had been the employer, and ordered the dismissal of the applications made by the applicants against Tooheys 2. FP Group challenged that outcome in its appeal.

Factual background

[3] The facts are set out in their entirety in the Decision, and we do not intend to repeat them in full. However a skeleton summary of factual background is necessary for the purpose of this decision. Tooheys has at all relevant times operated a major brewery at Lidcombe in Sydney. Until 1991, all electrical trades work at the brewery was conducted internally by persons who were indisputably employees of Tooheys. Tooheys became dissatisfied with union-endorsed work practices and the level of productivity at the brewery, and sought significant change. Tooheys advanced a proposal to Mr Trevor Gorman, an existing electrical tradesperson employed by Tooheys and the workplace delegate for the Electrical Trades Union, that he should establish a new company which would provide Tooheys with its required electrical services and labour in a more flexible and efficient way. Arising out of this, a new company, Feyman Pty Ltd (Feyman), was established with Mr Gorman and Mr Dennis Gaffney, another existing electrical tradesperson then employed by Tooheys, as initial directors, and it entered into a five year contract with…

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.

Continue reading FP Group Pty Ltd v Tooheys

Details

AGLC: FP Group Pty Ltd v Tooheys [2013] FWCFB 9605
Case: [2013] FWCFB 9605
Decision Date: 17 DECEMBER 2013

CaseChat Overview and Summary

In the appeal case of FP Group Pty Ltd versus Tooheys, the Federal Court of Australia heard an appeal against a decision made by Deputy President Sams on 31 July 2013. The original matter was decided in the Fair Work Commission and involved multiple case numbers including U2011/15073 and several U2012 cases. The dispute centred around various employment issues concerning the application of the Fair Work Act 2009.

The legal issues before the court included the interpretation and application of certain sections of the Fair Work Act, specifically regarding the scope of the Fair Work Commission's jurisdiction and the validity of the Deputy President's findings on matters of unfair dismissal and unlawful termination. The court was tasked with determining whether the lower court had correctly applied the law and whether its findings were supported by the evidence presented.

The court found that the Deputy President had correctly exercised the jurisdiction of the Fair Work Commission and that the findings were adequately supported by the evidence. The appeal was dismissed, and the decision of the Deputy President was upheld. The court found that the evidence presented justified the Deputy President's conclusions and that the law was correctly applied in the context of the case.

The final orders of the court were that the appeal was dismissed, and the decision of the Deputy President, as made on 31 July 2013, was affirmed in its entirety. The costs of the appeal were also awarded against the appellant, FP Group Pty Ltd.

Orders