DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Mr Steven Gangell
(AG2018/1546)

FOOD PROCESS WORKER LOBETHAL ABATTOIR EMPLOYEE COLLECTIVE AGREEMENT 2008
[AC329102] [AC323986]

Meat Industry
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 24 AUGUST 2018

Application for termination of the Food Process Worker Lobethal Abattoir Employee Collective Agreement 2008 - application for order to produce – records of a particular employee - apparent relevance – order premature

[1] This decision concerns an application for an order to produce in advance of the primary proceeding being heard and determined.

[2] The primary proceeding is an application (Form F28) dated 24 April 2018 to the Fair Work Commission (the Commission) by Mr Stephen Gangell (the applicant) for termination of a collective agreement-based transitional instrument being the Food Process Worker Lobethal Abattoir Employee Collective Agreement 2008 (the Agreement).

[3] The application is made pursuant to Item 16 Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) and, as a consequence, under section 225 of the Fair Work Act 2009 (the FW Act) and related provisions of Subdivision D of Division 7 of Part 2-4 of the FW Act.

[4] The Agreement is a collective agreement-based transitional instrument which, it is said, has passed its nominal expiry date.

[5] The applicant is being represented by an officer of the Australian Meat Industry Employees Union (the AMIEU).

[6] The respondent employer is Lobethal Abattoirs Pty Limited (the respondent employer).

[7] Mr Michael Handley has sought 1 and been granted permission to participate in these proceedings. Mr Handley is an employee of the respondent employer. He has participated in two conciliation conferences and some (but not all) directions hearings.

[8] I have conducted multiple directions hearings and issued directions on 18 May, 31 May, 4 June, 20 June and 7 August 2018.

[9] On 17 May 2018 I granted permission, by consent, for the respondent employer to be represented by a legal practitioner in these proceedings.

[10] On 31 May 2018 I made a decision concerning procedural matters. That decision was appealed by the AMIEU. By decision dated 31 July 2018 a full bench granted permission to appeal but dismissed the appeal. In doing so, it provided guidance on certain procedural matters.

[11] I conducted private conciliation conferences (attended by Mr Gangell, the AMIEU, Lobethal Abattoir and Mr Handley) on 3 July 2018 and 3 August 2018.

[12] On 7 August 2018 I set the application down for hearing and determination. It is listed for 29 and 30 October and 8 November 2018. I made orders requiring the filing of materials by the applicant (by 31 August), by the respondent employer (by 5 October) and by Mr Handley (by 5 October), with reply material by the applicant (by 19 October).

[13] In advance of the conciliation conference of 3 August and a directions hearing on 7 August, the AMIEU on behalf of…

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: Mr Steven Gangell [2018] FWC 4978
Case: [2018] FWC 4978
Decision Date: 24 AUGUST 2018

CaseChat Overview and Summary

The case involved the applicant, who applied for the termination of the Food Process Worker Lobethal Abattoir Employee Collective Agreement 2008. The applicant sought an order for the production of records relating to a particular employee. The matter was heard in the Fair Work Commission, which has jurisdiction over employment and workplace relations disputes in Australia.

The legal issues before the court were whether the applicant had established that the records in question were relevant to the proceedings and whether it was appropriate to make an order for their production at that stage of the case. The applicant argued that the records were necessary to establish the employee's status and the terms of their employment, which were relevant to the termination application. The respondent, on the other hand, argued that the order was premature and that the applicant had not yet demonstrated a sufficient basis for the production of the records.

The Fair Work Commission considered the arguments of both parties and noted that the applicant had not yet established a clear link between the records and the termination application. The Commission found that the order for production was premature, as the applicant had not yet demonstrated a sufficient basis for the production of the records. The Commission held that the applicant needed to provide more information to establish the relevance of the records to the proceedings before an order for production could be made. The court declined to make the order for production at that stage of the case.

The Fair Work Commission declined to make an order for the production of the records at that stage of the case. The court found that the applicant had not yet established a sufficient basis for the production of the records and that the order was premature. The case highlights the importance of establishing a clear link between the records sought and the proceedings before an order for production can be made.

Orders