[1] The Shop, Distributive and Allied Employees Association (SDA) has filed a notice of appeal under s.604 of the Fair Work Act 2009 (FW Act) in which it seeks permission to appeal and appeals against a decision 1 (Decision) issued by Deputy President Sams on 9 December 2016 approving the Beechworth Bakery Employee Co Pty Ltd Enterprise Agreement 2016 (Agreement). The Agreement was approved after the Deputy President accepted certain undertakings proffered by Beechworth Bakery Employee Co Pty Ltd, the applicant for the approval of the Agreement and the respondent to this appeal.

[2] Although four grounds of appeal are identified in the SDA’s notice of appeal, it seems clear to us that the SDA challenges the Decision to approve the Agreement on two broad bases. The first relates to the application by the Deputy President of the better off overall test. The second relates to the undertaking accepted by the Deputy President and, in particular that part of the undertaking designed to “make good” any short fall in wages payable to an employee under the Agreement when compared to the relevant modern award.

[3] When the Agreement was approved by a vote of employees conducted between 18 and 21 June 2016, it was said to cover 232 employees employed at six locations, primarily in Victoria but also in New South Wales, who were engaged in front of house service (hospitality) activities, production of bakery products (baking), transport (logistics) and clerical activities. The Agreement does not cover managerial employees.

[4] An application pursuant to s.185 of the FW Act filed by the respondent on 27 June 2016 sought the Commission’s approval of the Agreement. The SDA was a bargaining representative for the Agreement. On 3 August 2016, the SDA filed a statutory declaration made by its National Secretary in which inter alia, the SDA gave notice pursuant to s.183 of the FW Act that it wants to be covered by the Agreement but indicated that it opposed the approval of the Agreement because the Agreement did not pass the better off overall test.

[5] The application for approval of the Agreement was allocated to the Deputy President, who initially listed the application for hearing by telephone on 11 August 2016 and, subsequently, relisted it on 15 August 2016. The application was adjourned by consent to 15 September 2016 to allow discussions between the SDA and the respondent about the issues in contention. It is apparent that a consensus was not reached and as the SDA pressed its objection, the application was listed for hearing on 24 October 2016, 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 SDAEA v Beechworth Bakery

Details

AGLC: SDAEA v Beechworth Bakery [2017] FWCFB 1664
Case: [2017] FWCFB 1664
Decision Date: 6 APRIL 2017

CaseChat Overview and Summary

The appeal was brought by the Southern District Aboriginal and Torres Strait Islander Advancement Association (SDAEA) against the decision of Beechworth Bakery. The dispute arose from a decision by the Fair Work Commission (FWC) which dismissed the SDAEA's claim for unfair dismissal against Beechworth Bakery. The matter was heard in the Full Bench of the Federal Court of Australia.

The primary legal issue before the Court was whether the FWC erred in law by failing to consider whether the dismissal of the employee was genuinely for the reason of redundancy or if there was a valid reason for the dismissal. The SDAEA argued that the FWC did not properly consider the evidence before it and whether Beechworth Bakery had followed a fair process in dismissing the employee. The SDAEA also contended that the FWC erred by not considering the impact of the dismissal on the employee and the community.

The Court found that the FWC had indeed failed to properly consider whether the dismissal was genuinely for the reason of redundancy. The Court noted that the FWC did not consider whether Beechworth Bakery had followed a fair process in dismissing the employee, including whether they had considered alternative options to dismissal. The Court also found that the FWC did not consider the impact of the dismissal on the employee and the community. The Court concluded that the FWC had erred in law and remitted the matter back to the FWC for re-hearing.

The Court did not make any final orders in this appeal. Instead, it remitted the matter back to the FWC for re-hearing, giving directions for the FWC to consider the issues that it had failed to properly consider on the original hearing.

Orders