Lifestyle Bakery Pty Ltd v National Union of Workers

[2015] FWC 5199

[2015] FWC 5199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Lifestyle Bakery Pty Ltd
v
National Union of Workers
(C2015/4887)

VICE PRESIDENT HATCHER SYDNEY, 30 JULY 2015

Appeal against decision [2015] FWC 4720 and Directions of Senior Deputy President O'Callaghan at Adelaide on 14 July 2015 in matter numbers RE2015/837 and B2015/595 - application under s.606 of the Fair Work Act 2009 for a stay order.

[1] On 14 July 2015, Senior Deputy President O’Callaghan issued a decision 1 (Decision) concerning two applications lodged by the National Union of Workers (NUW) concerning Lifestyle Bakery Pty Ltd (Lifestyle Bakery) and its employees. The first application was one made under s.505 of the Fair Work Act 2009 (FW Act) in which the NUW sought an order permitting it to enter Lifestyle Bakery’s workplace. The second application was for a majority support determination under s.236 of the FW Act. In respect of both applications, the critical issue was whether the NUW had coverage of Lifestyle Bakery’s employees. The Senior Deputy President found that the NUW did have coverage. He declined to make a right of entry order at that time, but indicated that he was prepared to make such an order subject to consideration of the question of the frequency of site visitations. In respect of the majority support determination application, the Senior Deputy President determined that a secret ballot of employees should be conducted by the Australian Electoral Commission (AEC) in order to determine the extent of employee support for enterprise bargaining. The Senior Deputy President separately made directions on 14 July 2015 to facilitate the conduct of such a ballot (Directions).

[2] On 24 July 2015 Lifestyle Bakery lodged a notice of appeal in which it sought permission to appeal and appealed the Decision and the Directions. The notice of appeal also sought a stay of the Decision and Directions pending the hearing and determination of Lifestyle Bakery’s appeal. This decision is concerned with the application for a stay order.

[3] The principles applied to the determination of stay applications in this jurisdiction are those stated in the decision of Edghill v Kellow-Falkiner Motors Pty Ltd 2 as follows:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[4] The required assessment of an appeal’s prospects of success for the purposes of determining a stay application is necessarily of a preliminary nature only, since the Commission will not have had the benefit of hearing the appellant’s full argument and may not have had the opportunity to comprehensively peruse the case materials. 3

[5] Lifestyle Bakery sought a stay order in relation to both the NUW’s capacity to enter its workplace and the arrangements made by the Senior Deputy President, through the Directions, for the conduct of the AEC ballot for the purpose of the majority support determination application. I do not consider that there is anything to stay at this point in time in relation to the right of entry issue since, as earlier stated, the Senior Deputy President has not yet made any order in respect of this issue. I shall therefore only consider the application for a stay order in respect of the arrangement for the ballot contained in the Directions.

[6] The issue of coverage turned on whether the bread products manufactured by Lifestyle Bakery fell within the expressions “cereal foods” or “grocers’ sundries” appearing in the NUW’s eligibility rule. Lifestyle Bakery’s notice of appeal challenged the Senior Deputy President’s conclusion that the products fell within these expressions, and its counsel elaborated upon those grounds in the course of the stay hearing. On the limited argument I have heard to this point, I cannot characterise the appeal grounds as strong. However the obscurity of the relevant expressions in the NUW’s rules and the long-past industrial history they are likely to reflect means that Lifestyle Bakery’s grounds of appeal may be characterised as being arguable with reasonable prospects of success.

[7] In relation to the balance of convenience, the main issue appears to me to be the changing composition of Lifestyle Bakery’s workforce. Both parties submitted that there is a very high turnover rate amongst the workforce, which also has a high proportion of persons from a non-English speaking background. I consider that this raises timing problems in relation to the proper determination of the NUW’s application for a majority support determination.

[8] Section 237(1) requires that the Commission, once an application for a majority support application is made, make such a determination if it is satisfied of the matters set out in s.237(2). Section 237(2) provides:

(2) The FWC must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by the FWC; and

(ii) who will be covered by the agreement;

want to bargain; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c) that the group of employees who will be covered by the agreement was fairly chosen; and

(d) it is reasonable in all the circumstances to make the determination.

[9] The ballot is obviously intended to assist the Commission in determining whether, for the purposes of s.237(2)(a), a majority of relevant employees want to bargain. In the Decision, the Senior Deputy President has already expressed his satisfaction as to the matters in s.237(2)(b) and (c). In relation to s.237(2)(d), the Senior Deputy President indicated that he would deal with this matter once the ballot result was known.

[10] Under the Directions the ballot is due to close on 21 August 2015, and the result is to be declared as soon as practicable after that. The next step would then be a further hearing before the Senior Deputy President to determine whether he was satisfied as to the matters in s.237(2)(a) and (d), and a decision would then need to be issued.

[11] The appeal will be able to be heard by a Full Bench of the Commission on 10 September 2015. Given the proximity of the appeal hearing, it could not be expected that the further hearing before the Senior Deputy President would proceed until after the appeal is heard and determined. If the appeal is successful, that would be the end of the matter, but if it is unsuccessful, it would then be necessary for the Senior Deputy President to proceed to hear and determine whether the matters in s.237(2)(a) and (d) are satisfied. This may mean that the determination of whether the majority of employees want to bargain and whether it is reasonable in all the circumstances to make a majority support determination may occur some weeks or even months after the ballot has been conducted. Because of the high turnover in the workforce, it can reasonably be anticipated that this would make available an argument that the results of the ballot did not represent the views of the current, differently constituted workforce. This would affect the consideration as to whether the s.237(2)(a) matter was satisfied, and might also affect the Commission’s consideration under s.237(2)(d).

[12] I consider that such a situation would be highly undesirable. For the reasons explained, the passage of time and the turnover of the workforce may vitiate the results of the currently-arranged ballot, and may even require a further ballot to be conducted. I therefore consider that the balance of convenience favours the grant of a stay in respect of the Directions, so that the conduct of the ballot is delayed until after the appeal is heard and determined. If the appeal is unsuccessful, the ballot may then proceed and the necessary further hearing may occur immediately after the results of the ballot are declared.

[13] A separate order 4 will issue staying the Directions. To be clear, the stay is not intended to affect such rights of entry under the FW Act which the NUW possesses. In that connection, the undertaking given by the NUW referred to in paragraph [36] of the Decision will continue to apply.

VICE PRESIDENT

Appearances:

A. Duc of counsel for Lifestyle Bakery Pty Ltd.

E. Barrett for the National Union of Workers.

Hearing details:

2015.

Sydney:

29 July.

 1   [2015] FWC 4720

 2   [2000] AIRC 785, Print S2639

 3  Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]

 4   PR569980

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<Price code A, PR569978>