Shop, Distributive and Allied Employees' Association v Noni B Limited - [2019] FCA 557

FEDERAL COURT OF AUSTRALIA
Shop, Distributive and Allied Employees' Association v Noni B Limited [2019] FCA 557

File number: WAD 169 of 2019

Judge: COLVIN J

Date of judgment: 18 April 2019

Catchwords: INDUSTRAL LAW - application by union for injunctive relief pending final hearing - where respondents had made a decision to reduce the rostered hours of employees and make employees redundant at underperforming retail stores - whether respondents breached obligation to consult - where there is considerable merit in the claim that there had not been consultation of the kind required - where an injunction until trial would not serve the purpose of preserving the subject matter of the claim by the union - injunction granted for a limited period

Legislation: Fair Work Act 2009 (Cth) ss 545, 546

Cases cited:
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd [2009] FCA 726

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australiav Electrix Pty Ltd [2018] FCA 1879

QR Limitedv Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150

Date of hearing: 16 & 18 April 2019

Registry: Western Australia

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 35

Counsel for the Applicant: Ms L Saunders (16 April 2019)
Mr D Scaife (18 April 2019)

Solicitor for the Applicant: Eureka Lawyers

Counsel for the Respondents: Mr R Dalton SC with Mr A Manos

Solicitor for the Respondents: FCB Lawyers & Consultants

ORDERS

WAD 169 of 2019

BETWEEN:
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION

Applicant

AND:
NONI B LIMITED (ACN 003 321 579)

First Respondent

NONI B HOLDINGS PTY LIMITED (ACN 614 340 537)

Second Respondent

PRETTY GIRL FASHION GROUP PTY LIMITED (ACN 051 283 900)

Third Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

18 APRIL 2019

THE COURT NOTES THAT:
1.The affidavit of Jessica Furolo affirmed 9 April 2019 states in paras 37 and 38:
'On Thursday 28 March 2019, I met with CEO of Noni B Group, Scott Evans and the CFO of Noni B Group, Luka Softa.
In the course of that meeting, Mr Evans, Mr Softa and I made a definite decision to reduce the rostered hours at underperforming retail stores across the Noni B Group as a result of continuing store sales decline (the March Decision).'

THE COURT ORDERS THAT:
1.The respondents do by 26 April 2019 file a copy of the affidavit of Mr Evans affirmed 9 April 2019 excluding those parts which were not read on the application for an interlocutory injunction.
2.Upon filing of the copy of the affidavit there be leave to uplift the affidavit of Mr Evans of 9 April 2019.
3.Until 3 May 2019, the respondents are each restrained, whether by their officers, employees or agents, from giving effect to any notice of:
(a)termination of employment;
(b)alteration of hours of work; or
(c)transfer of employment,

given…

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 Shop, Distributive and Allied Employees' Association v Noni...

Details

AGLC: Shop, Distributive and Allied Employees' Association v Noni B Limited [2019] FCA 557
Case: [2019] FCA 557
Decision Date: 18 April 2019

CaseChat Overview and Summary

The Shop, Distributive and Allied Employees' Association applied to the Federal Circuit Court of Australia for injunctive relief pending a final hearing. The applicants sought an injunction to prevent the respondents from giving effect to decisions made to reduce rostered hours and render employees redundant at underperforming stores. The court was required to determine whether the respondents breached their obligation to consult the union before implementing the decisions. The applicants argued that the respondents did not engage in the required consultation, while the respondents claimed that the consultation was sufficient. The court considered whether granting an injunction until trial would preserve the subject matter of the claim by the union.

The court found that there was considerable merit in the applicants' claim that the consultation did not meet the required standard. The court held that the injunction would not serve the purpose of preserving the subject matter of the claim if it were to be granted until the trial. However, the court found that an injunction for a limited period would preserve the subject matter of the claim. The court granted an injunction until 3 May 2019, restraining the respondents from giving effect to any notice of termination of employment, alteration of hours of work, or transfer of employment given to an employee by reason of the March Decision. The injunction did not prevent the respondents from giving effect to a notice where the employee confirmed in writing that they wished this to occur. The costs of the application for an interlocutory injunction were reserved, and the matter was listed for a further case management hearing.

The court ordered that the respondents file a copy of the affidavit of Mr Evans affirmed 9 April 2019, excluding those parts that were not read on the application for an interlocutory injunction. Upon filing, leave was granted to uplift the affidavit of Mr Evans of 9 April 2019. The injunction granted was limited to preventing the respondents from giving effect to any notice of termination of employment, alteration of hours of work, or transfer of employment given to an employee by reason of the March Decision. The court emphasised that the injunction did not prevent the respondents from giving effect to a notice where the employee confirmed in writing that they wished this to occur. The costs of the application for an interlocutory injunction were reserved, and the matter was listed for a further case management hearing.

Orders

Orders of the court

1. The respondents do by 26 April 2019 file a copy of the affidavit of Mr Evans affirmed 9 April 2019 excluding those parts which were not read on the application for an interlocutory injunction.

2. Upon filing of the copy of the affidavit there be leave to uplift the affidavit of Mr Evans of 9 April 2019.

3. Until 3 May 2019, the respondents are each restrained, whether by their officers, employees or agents, from giving effect to any notice of:

(a) termination of employment;

(b) alteration of hours of work; or

given to an employee by reason of the March Decision (as defined in the affidavit of Jessica Furolo affirmed 9 April 2019).

4. Order 3 does not restrain or prevent the respondents from giving effect to a notice of redundancy, alteration of hours of work, or transfer of employment, where the employee confirms in writing that they wish this to occur.

5. The costs of the application for an interlocutory injunction be reserved.

6. The matter be listed for a further case management hearing at 9.45 am on 9 May 2019.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	WAD 169 of 2019
Judge:	COLVIN J
Date of judgment:	18 April 2019
Catchwords:	INDUSTRAL LAW - application by union for injunctive relief pending final hearing - where respondents had made a decision to reduce the rostered hours of employees and make employees redundant at underperforming retail stores - whether respondents breached obligation to consult - where there is considerable merit in the claim that there had not been consultation of the kind required - where an injunction until trial would not serve the purpose of preserving the subject matter of the claim by the union - injunction granted for a limited period
Legislation:	Fair Work Act 2009 (Cth) ss 545, 546
Cases cited:	Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd [2009] FCA 726 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australiav Electrix Pty Ltd [2018] FCA 1879 QR Limitedv Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150
Date of hearing:	16 & 18 April 2019
Registry:	Western Australia
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	35
Counsel for the Applicant:	Ms L Saunders (16 April 2019) Mr D Scaife (18 April 2019)
Solicitor for the Applicant:	Eureka Lawyers
Counsel for the Respondents:	Mr R Dalton SC with Mr A Manos
Solicitor for the Respondents:	FCB Lawyers & Consultants