The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd (C2018/6126)
JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT SAUNDERS COMMISSIONER LEE
SYDNEY, 20 DECEMBER 2018
Appeal against Decision [2018] FWCA 6202 of Deputy President Masson at Melbourne on 10 October 2018 – redaction of wage rates from published enterprise agreement approved under Part 2-4 – Sections 594 and 601 of the Fair Work Act 2009 – No power under s.594 for an order redacting wage rates in an enterprise agreement approved under Part 2-4 – person aggrieved – permission to appeal granted – appeal upheld – lack of requisite power – redaction decision quashed – Oji Agreement to be published on the Commission’s website without the redaction of the wage rates.
Background
[1] This matter concerns an appeal by The Australian Workers’ Union (the AWU) from a decision by Deputy President Masson in Re Oji Foodservice Packaging Solutions (Aus) Pty Ltd 1(the Decision) in which the Deputy President approved the Oji Foodservice Packaging Solutions (Aus) Pty Ltd Employee Enterprise Agreement 2018 (the ‘Oji Agreement’) and decided to redact the wage rates from the published version of the Oji Agreement.
[2] The employer, Oji Foodservice Packaging Solutions (Aus) Pty Ltd (Oji Pty Ltd or the Respondent), was the applicant in the proceedings at first instance. The Oji Agreement was made on 25 June 2018 and the relevant reference instrument is the Graphic Arts, Printing and Publishing Award 2010 (the Graphic Arts Award).
[3] The Deputy President’s reasons for decision confirmed his satisfaction that the requirements in ss.186, 187, 188 and 190 of the Fair Work Act 2009 (Cth) (the FW Act) were met and that, pursuant to a request made by the employer, the wage rates contained within the Oji Agreement would be redacted in the published version. At [4] of the Decision, the Deputy President says:
‘The Applicant requested redaction of wage information provided at pages 24 to 31 of the Agreement on the basis of the highly competitive nature of the Applicant’s industry, and on which submissions were made. Having regard to the circumstances of the Applicant and their submissions I am satisfied that this is a reasonable request and that wage rate information will be redacted.’
[4] The part of the Decision which is the subject of the appeal is the Deputy President’s decision to redact the wage rates (the redaction decision).
[5] The parties consented to the appeal being dealt with on the papers, without a hearing, pursuant to s.607(1) of the FW Act. To provide any other interested parties with an opportunity to be heard, the matter was listed for hearing on 4 December 2018. No parties attended the hearing.
[6] We are satisfied that the appeal can be adequately determined without persons making oral submissions and have determined the appeal on the basis of the written submissions filed by the AWU and the Australian Industry Group (Ai Group) (on behalf…
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
The Australian Workers' Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501
Case
[2018] FWCFB 7501
Decision Date
CaseChat Overview and Summary
The Australian Workers' Union brought an appeal against a decision of the Fair Work Commission, arguing that wage rates should not have been redacted from an enterprise agreement approved under the Fair Work Act 2009. The case was heard by the Full Bench of the Federal Circuit Court of Australia. The Union contended that the Commission lacked the power to order the redaction of wage rates from an enterprise agreement once it had been approved.
The primary legal issues before the Court were whether the Fair Work Commission had the power to order the redaction of wage rates from an enterprise agreement and if the Union was an aggrieved party with standing to appeal. The Court examined the relevant sections of the Fair Work Act, particularly Sections 594 and 601, to determine the Commission's authority in this matter. The Union argued that the redaction of wage rates compromised transparency and the integrity of the approved agreement, impacting the employees' rights.
The Court found that the Fair Work Commission did not have the requisite power under Section 594 to order the redaction of wage rates from an approved enterprise agreement. The Court concluded that the Union was an aggrieved party as the redaction decision affected the terms of the enterprise agreement and the Union's ability to advocate for its members. Consequently, the Court granted the Union's appeal, quashed the redaction decision, and ordered that the Oji Agreement be published on the Commission's website without redacting the wage rates.