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Simplot Australia Pty Ltd v AMWU

Simplot Australia Pty Ltd v AMWU

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Case Copied 22 September 2020 24 min read

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[2020] FWCFB 5054

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Simplot Australia Pty Ltd
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2020/5404)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT SAUNDERS

MELBOURNE, 22 SEPTEMBER 2020

Appeal against decision [2020] FWC 3171 of Deputy President Barclay at Hobart on 22 June 2020 in matter number C2018/6054 – arbitration under disputes procedure of a superseded agreement – excess of jurisdiction – appeal upheld – application redetermined and dismissed.

[1] This decision concerns an appeal under s 604 of the Fair Work Act 2009(Cth) (Act) lodged by Simplot Australia Pty Ltd (Simplot) from a decision of Deputy President Barclay made on 22 June 2020. 1 The Deputy President determined that the Commission had jurisdiction to hear and decide an application brought by the Automotive, Food, Metals Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers Union (AMWU), under s 739 of the Act and the disputes procedure in the AMWU, CEPU and Simplot Australia Pty Limited National Collective Agreement 2014 – 2017 (2014 Agreement).

[2] The respondent to this appeal, Simplot Australia Pty Ltd (Simplot), contends that the Deputy President exceeded his jurisdiction because the 2014 Agreement had been superseded by another enterprise agreement, the AMWU, CEPU and Simplot Australia Pty Limited, Employee National Collective Agreement 2018 – 2021 (2018 Agreement). It submitted that, because the 2014 Agreement is no longer in operation, it has ceased to be a source of authority for the Commission to determine a dispute referred to it under that instrument.

[3] An appeal under s 604 of the Act is an appeal by way of rehearing, however the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. An appeal may be made only with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is in the public interest to do so. Permission may otherwise be granted on discretionary grounds.

Background

[4] The 2014 Agreement commenced operation on 5 February 2015. On 29 October 2018, the AMWU filed an application in the Commission under s 739 of the Act for the Commission to deal with a dispute in accordance with the dispute resolution provision in clause 44 of the 2014 Agreement. The dispute concerned Simplot’s refusal to convert two casual employees to permanent positions pursuant to the terms of the 2014 Agreement. On 16 November 2018, the parties participated in conciliation before the Commission but were unable to resolve the dispute. By email dated 26 November 2018, addressed to the Deputy President, the AMWU sought to have the dispute arbitrated and requested that the matter be listed for directions.

[5] On 3 December 2018, Commissioner Harper-Greenwell issued a decision approving the 2018 Agreement, which commenced to operate 7 days later, in accordance with s 54 of the Act.…

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

Case: [2020] FWCFB 5054
Decision Date: 22 SEPTEMBER 2020

CaseChat Overview and Summary

Simplot Australia Pty Ltd has appealed against the decision of Deputy President Barclay of the Fair Work Commission, delivered on 22 June 2020 in Hobart, which dismissed the company's application to arbitrate under the dispute resolution procedure of a superseded agreement. The dispute at the centre of the case involves the interpretation and application of certain provisions within the terminated enterprise agreement between Simplot Australia and the Australian Manufacturing Workers' Union (AMWU).

The legal issues before the court primarily concerned the jurisdiction of the Fair Work Commission to arbitrate disputes under a superseded enterprise agreement, as well as the scope and limits of such jurisdiction. The crux of the matter hinged on whether the Commission had the authority to entertain and decide on the dispute, given the agreement under which the dispute was raised had been replaced by a new agreement.

In its decision, the court considered the precedent set by earlier cases, which held that once a new enterprise agreement has been registered, the Fair Work Commission's jurisdiction to arbitrate disputes under the superseded agreement ceases. The court found that Deputy President Barclay had erred in exercising jurisdiction over the dispute, as the new agreement had rendered the old dispute resolution provisions inoperative. Consequently, the appeal was upheld, and the application was redetermined and dismissed.

Orders