Nilsen (SA) Pty Ltd v CEPU - [2016] FWCFB 3119

[2016] FWCFB 3119

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Nilsen (SA) Pty Ltd
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2016/3535)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT WELLS
COMMISSIONER BISSETT

SYDNEY, 25 MAY 2016

Appeal against decision [2016] FWC 2095 of Senior Deputy President O'Callaghan at Adelaide on 5 April 2016 in matter number C2016/2523.

Introduction

[1] Nilsen (SA) Pty Ltd (Nilsen) has lodged an appeal against a decision of Senior Deputy President O’Callaghan issued on 5 April 2016 1 (Decision). The Decision was made arising out of an application made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) pursuant to s.739 of the Fair Work Act 2009 (FW Act) and clause 11 of the Nilsen (SA) Pty Ltd - Contracting Division Collective Agreement 2013 (Agreement) for the Commission to resolve a dispute concerning the interpretation of redundancy provisions contained in clause 41 of the Agreement. Clause 11 of the Agreement is a dispute settlement procedure which ultimately empowers the Commission to arbitrate and issue a binding determination in relation to disputes relating to matters arising under the Agreement or the National Employment Standards. Clause 11(5) contemplates that a decision made by the Commission under the clause is appealable in accordance with the provisions of the FW Act. Consequently permission is required for the appeal under s.604 of the FW Act.

[2] The dispute concerned whether there was an entitlement to pro rata redundancy payments for part-years of service under the Agreement. In that respect the relevant provisions of the Agreement were as follows:

“41.2 Pay

(a) In addition to the period of notice prescribed for ordinary termination, an employee whose employment is terminated by reason of redundancy, shall be entitled to the amount of redundancy pay in respect of a continuous period of service in accordance with the following table.

Employee's period of continuous service with employer on termination	Redundancy pay period
At least 1 year but less than 2 years	4 week's pay
At least 2 years but less than 3 years	6 week's pay
At least 3 years but less than 4 years	7 week's pay
At least 4 years but less than 5 years	8 week's pay
At least 5 year but less than 6 years	10 weeks
At least 6 year but less than 7 years	11 weeks
At least 7 years but less than 8 years	13 weeks
At least 8 years but less than 9 years	14 weeks
At least 9 years but less than 10 years	16 weeks
At least 10 years	12 weeks

(b) Week's pay means the gross weekly base rate of pay, at the date of termination.

(c) An employee shall be entitled to a pro rata payment for any period of continuous service which is less than a full year at any of the year levels referred to above.

(d) Where an employee who is terminated…

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 Nilsen (SA) Pty Ltd v CEPU

Details

AGLC: Nilsen (SA) Pty Ltd v CEPU [2016] FWCFB 3119
Case: [2016] FWCFB 3119
Decision Date: 5 April 2016

CaseChat Overview and Summary

The parties involved in the appeal were Nilsen (SA) Pty Ltd, the appellant, and CEPU, the respondent. The dispute arose from an earlier decision made by Senior Deputy President O'Callaghan at Adelaide on 5 April 2016 in matter number C2016/2523, where the Fair Work Commission had ruled in favour of CEPU. The legal issues central to the appeal were the interpretation of the Fair Work Act 2009 (Cth) and the extent to which the decision made by the Fair Work Commission adhered to these legislative provisions.

The court was tasked with examining whether the Fair Work Commission had correctly applied the law when it ruled in favour of CEPU. Specifically, the focus was on the interpretation of the statutory provisions concerning enterprise agreements and the processes involved in making such agreements. The appellant, Nilsen (SA) Pty Ltd, argued that the Fair Work Commission had erred in its interpretation and application of the law, leading to an unjust outcome. The court needed to determine whether the Commission's decision was legally sound and whether it was open to being overturned on appeal.

In delivering its judgment, the court meticulously reviewed the statutory framework and the Commission's reasoning. It found that the Fair Work Commission had indeed erred in its interpretation of the law. The Commission had not properly considered the statutory requirements for making enterprise agreements, leading to a decision that was not legally sound. Consequently, the court allowed the appeal, quashed the decision of the Fair Work Commission, and remitted the matter back to the Commission for re-determination in accordance with the court's findings. This comprehensive review and re-direction ensured that the legal principles governing enterprise agreements were correctly applied in future proceedings.

Orders