Swickers Kingaroy Bacon Factory Pty Ltd v Bacon Factories' Union of Employees, Queensland, The

[2018] FWC 488

[2018] FWC 488

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Swickers Kingaroy Bacon Factory Pty Ltd
v
Bacon Factories' Union of Employees, Queensland, The
(C2018/218)

VICE PRESIDENT HATCHER SYDNEY, 23 JANUARY 2018

Appeal against decision [2017] FWC 7049 of Deputy President Asbury at Brisbane on 22 December 2017 in matter number C2017/235.

[1] This is an edited version of the decision given on transcript at the conclusion of the hearing of this matter on 17 January 2018.

[2] The appellant in this matter, Swickers Kingaroy Bacon Factory Pty Ltd, has lodged an appeal against a decision of Deputy President Asbury issued on 22 December 2017 1 (Decision). In that decision the Deputy President dealt with a dispute which had been notified to the Commission pursuant to s 739 of the Fair Work Act 2009 (FW Act) in accordance with the dispute resolution procedure contained in the Swickers Kingaroy Bacon and BFUE Collective Workplace Agreement 2012 (Agreement). The parties to the dispute, which were the appellant and the Bacon Factories’ Union of Employees, Queensland (respondent), raised three questions concerning the proper interpretation of the Agreement in respect of certain loadings for work performed outside the spread of hours at night and on Saturdays.

[3] It is not necessary for me to go into any further detail about what the Deputy President decided, save to say in relation to the first question the Deputy President determined that casual employees who were not employed as cleaners who are employed to work shifts were entitled to the loading in clause 13.2.4 of the Agreement in addition to their casual loading. That answer, if implemented, would require the appellant to both pay additional amounts to those employees going forward as well as back-pay for work performed going back a number of years. The appellant has appealed the answers given to the three questions by the Deputy President, noting that in some respects in relation to questions 2 and 3 the answers were provisional in nature and a further hearing is contemplated. In respect of the answer to question 1 the appellant seeks a stay of the operation of the decision pending the hearing and determination of its appeal. The respondent accepts and indeed asserts that the effect of the answer given to question 1, if not stayed, is that the appellant is required to make additional payments to the affected employees that I have earlier referred to. The stay is opposed by the respondent.

[4] The principles applying to the determination of stay applications are well established, and the practice of the Commission is to adopt the two-part test is enunciated in a decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd. 2 This decision has been followed in a number of cases decided under theFW Act. Paragraph [5] of that decision states:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[5] In assessing whether the purpose of a stay application in an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits of a preliminary nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity to properly peruse the case materials. 3

[6] Turning to the first limb of the test for a stay, having read the Decision, heard the oral submissions of the parties and read the written submissions of the respondent, I am satisfied that there is, with respect to question 1, an arguable case with some reasonable prospects of success both in relation to permission to appeal and the merits of the appeal. I consider that the grant of permission to appeal is well arguable given that it involves a closely contested interpretation of an enterprise agreement in circumstances where the answer given is contrary to the practice apparently adopted jointly by the parties over the lifetime of the Agreement and, if permission is not granted, will give rise to substantial financial liabilities on the part of the appellant. I am also satisfied on a very preliminary assessment of the matter that the appeal against the answer to question 1 is arguable with some reasonable prospect of success. All I will say at this stage, given that there is a possibility that I may sit on the appeal proper, is that it appears to me that there is some degree of complexity in the interpretation of the provisions of the Agreement relevant to the question which could conceivably give rise to an alternate interpretation other than the one adopted by the Deputy President.

[7] In respect of the balance of convenience, I am satisfied that the balance of convenience favours the grant of a stay. If a stay is not granted, the appellant will be required to conform to the requirements of the Decision in relation to question 1, to undertake calculations with respect to a number of employees about payment obligations going back a number of years as well as calculate the effect of the answer to the question on future work. I am satisfied the calculations will be time extensive and will themselves cause the appellant to incur some cost and inconvenience. Further, once those calculations have been done the appellant would be required to pay the outstanding amounts to the employees in circumstances where, if the appeal were to be successful, the appellant would then have to try to recover those amounts from them - a situation which one could readily perceive would be redolent of industrial difficulty. I also take into account the likelihood that the appeal could be heard in the Commission’s March roster, such that a reasonably prompt outcome to the appeal can be predicted.
[8] I do however consider that any stay granted should be subjected to a condition that the appellant pay into an interest bearing account pending the hearing and determination of the appeal a sum of money which represents a reasonably substantial proportion of the amount which might be owed if the appeal is ultimately unsuccessful. The appellant in that respect has proffered that it would prepared to deposit the amount of $50,000 into an account. I note the submissions advanced by the representative of the respondent that his instructions are that the amount might be four times in excess of that. I am not in a position based simply on the submissions advanced to resolve that issue but I am satisfied that the amount of $50,000 represents a good faith, reasonable contribution to any amount that might ultimately have to be paid. I will make an order that the Decision of Deputy President Asbury, in respect of the answer to question 1, should be stayed pending the hearing and determination of the appeal on the condition that the Appellant deposits the amount of $50,000 into an interest bearing account within 7 days of today’s date. The parties should have discussions regarding the appropriate account into which that sum is to be paid and should send me a minute with the precise order to be made, and I will then issue that order.

VICE PRESIDENT

Appearances:

M. Healy of counsel with S. Laird for Swickers Kingaroy Bacon Factory Pty Ltd.

W. Ash with K. Birch for the Bacon Factories' Union of Employees, Queensland.

Hearing details:

2018:

Sydney video-link to Brisbane

17 January

 1   [2017] FWC 7049

 2   [2000] AIRC 785, Print S2639

 3  Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]

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