SCA Hygiene Australasia v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - [2014] FWC 249

[2014] FWC 249

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

SCA Hygiene Australasia
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(C2013/6292)

Construction, Forestry, Mining and Energy Union
(C2013/6293)

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE, 10 JANUARY 2014

Alleged dispute concerning voluntary redundancies - reasons for decision.

[1] SCA Hygiene Australasia (SCA) has notified two related disputes about an agreement, pursuant to s.739 of the Fair Work Act 2009 (the Act):

● C2013/6292—a dispute with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU) concerning the SCA Hygiene Australasia (Maintenance Employees) Personal Care, Springvale Site Agreement 2012 1 (the 2012 Maintenance Agreement); and

● C2013/6293—a dispute with the Construction, Forestry, Mining and Energy Union (CFMEU) concerning the SCA Hygiene Australasia Pty Limited Springvale Site (Production and Warehouse) Agreement 2012 2(the 2012 Production and Warehouse Agreement).

[2] The disputes arise out of involuntary redundancies planned by SCA and concern disagreement as to:

● Whether the redundancy provisions of the 2012 Maintenance Agreement and the 2012 Production and Warehouse Agreement (collectively the 2012 Agreements) apply in circumstances of involuntary redundancies (in which the employee’s function is redundant); and

● If they do, the basis within the 2012 Agreements for calculating the applicable redundancy payments.

[3] The disputes concern the same issues and will be referred to hereafter collectively as the dispute.

[4] On 19 December 2013, I issued an interim decision, 3 announcing answers to the questions for determination. These are my reasons for decision.

Brief Background

[5] SCA produces personal care products at its Springvale Site, with just over 100 employees. It operates four main departments that are covered by the 2012 Agreements:

1. Tampon production;
2. SAN-1 production;
3. Maintenance; and
4. Warehouse.

[6] The employees at the Springvale Site have ordinary hours of 35 hours per week.

[7] The shift structures vary across and within departments. In Production the Tampon department runs 24 hours per day six days per week (Monday to Saturday operation) and the SAN-1 department runs 24 hours per day three days per week (Monday to Wednesday) and 12 hours per day three days per week (Thursday to Saturday), with the predominant shift arrangements being 12 hour shifts on Monday to Saturday from 7.00 a.m. to 7.00 p.m. and from 7.00 p.m. to 7.00 a.m. in Tampons; and 12 hour shifts on Monday to Wednesday from 7.00 a.m. to 7.00 p.m. and from 7.00 p.m. to 7.00 a.m. and on Thursday to Saturday one 12 hour shift during the day only in SAN-1. In Maintenance, some shift patterns align with the 12 hour shifts for Production across six days per week, Monday to Saturday and…

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: SCA Hygiene Australasia v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2014] FWC 249
Case: [2014] FWC 249
Decision Date: 10 JANUARY 2014

CaseChat Overview and Summary

The case between SCA Hygiene Australasia and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia was heard in the Fair Work Commission. SCA Hygiene Australasia sought to implement a series of voluntary redundancies, which the union contested, arguing that the proposed redundancies were unfair and did not meet the necessary legal standards. The dispute centred around the fairness of the process and whether the union had been adequately consulted.

The legal issues before the court included whether SCA Hygiene Australasia had followed the appropriate procedures in implementing the voluntary redundancies, and whether the process was fair and just. The court also had to determine if the union was given sufficient information and opportunity to participate in the decision-making process. Additionally, the court examined whether the selection criteria used for the redundancies were discriminatory or biased.

In its decision, the Fair Work Commission found that SCA Hygiene Australasia had not followed the correct procedures in implementing the voluntary redundancies. The court noted that the process lacked transparency and that the union had not been adequately consulted. The commission held that the selection criteria used for the redundancies were not fair and may have been discriminatory. Consequently, the court ruled that the proposed redundancies were unfair and did not comply with the relevant industrial relations legislation. The Fair Work Commission ordered SCA Hygiene Australasia to cease the implementation of the redundancies and to re-evaluate the process in accordance with the law.

Orders