United Voice v Academy Services - [2019] FCCA 1620

FEDERAL CIRCUIT COURT OF AUSTRALIA

UNITED VOICE v ACADEMY SERVICES

[2019] FCCA 1620

Catchwords:

INDUSTRIAL LAW – Workplace agreement – whether respondent in breach of workplace agreement in failing to offer employment to existing employees of an outgoing contractor – whether relevant clause in collective agreement void by virtue of prohibited content – approbation and reprobation – whether relevant content of collective agreement pertained to relations between employer and employee – content not prohibited – breach of collective agreement found – declaration made.

Legislation:

Academy Services and LHMU Cleanstart Union Collection Agreement 2008, cls. 48.3, 48.5 and 48.5.1.2
Corporations Act 2001 (Cth)
Fair Work Act 2009 (Cth), ss.172(1), 172(1)(a) & (b), 253(1), 540(2), 545 and 546
Fair Work (Registered organisations) Act 2009 (Cth)
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Schedule 3 and 16
Workplace Relations Act 1996 (Cth), ss.356, 357 and 358
Workplace Relations Regulations 2006 (Cth), regs.8.7(1), (2) & (3) and 8.7(1)

Cases cited:

Fried v National Australia Bank Ltd [2000] FCA 910

Commonwealth v Verwayen (1990) 170 CLR 394
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211
Bienvenu v Royal Society for Protection of Animals [1967] VR 656
Australian Workers’ Union, New South Wales Branch v Minister for Natural Resources and Others (1991) 26 ALD 461
Ross v Smith, Timms & Co [1909] SALR 128
Gerloff v Edwards [1917] SALR 93
Walsh v Commercial Travellers’ Association of Victoria [1940] VLR 259
Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] 1 All ER 300
Equuscorp Pty Ltd v Wilmoth Field Warne (2007) 18 VR 250
Welch v Nagy [1949] 2 All ER 868
Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 209 ALR 116
Re Cram and Others; Ex parte New South Wales Colliery Proprietors’ Association Ltdand Others (1987) 72 ALR 161
Re Schefenacker Vision Systems Australia Pty Ltd, AWU, AMWU Certified Agreement 2004 [2005] AIRC 233
United Firefighters’ Union v Metropolitan Fire and Emergency Services Board (2016) FWCFB 2894

Applicant:

UNITED VOICE

Respondent:

ACADEMY SERVICES PTY LTD

File Number:

ADG 299 of 2016

Judgment of:

Judge Heffernan

Hearing date:

7 November 2017

Date of Last Submission:

9 November 2017

Delivered at:

Adelaide

Delivered on:

14 June 2019

REPRESENTATION

Counsel for the Applicant:

Mr S Blewett

Solicitors for the Applicant:

United Voice

Counsel for the Respondent:

Mr K Luke

Solicitors for the Respondent:

Thomsons Lawyers

IT IS DECLARED THAT:

Academy Services Pty Ltd has contravened Section 50 of the Fair Work Act 2009 (Cth) by failing to offer employment to existing staff of an outgoing contractor namely, to Ms Pooja Khadka, Mr Federico Salazar Arevalo and Ms Lady Salazar Perez, as required by the Academy Services and LHMU Cleanstart Union Collective Agreement 2008.

ORDERS:

This matter is adjourned to a date and time to be advised for submissions as to compensation and pecuniary penalty.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 299 of 2016

UNITED VOICE

Applicant

And

ACADEMY SERVICES PTY LTD

Respondent

REASONS FOR JUDGMENT

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: [2019] FCCA 1620
Decision Date: 14 June 2019

CaseChat Overview and Summary

United Voice (the applicant union) brought proceedings against Academy Services Pty Ltd (the respondent) in the Federal Court of Australia. The dispute concerned Academy Services' failure to offer employment to existing employees of an outgoing contractor when Academy Services took over a cleaning contract. The union alleged that this failure constituted a breach of a collective agreement.

The court was required to determine two primary legal issues. First, whether Academy Services was in breach of the collective agreement by failing to offer employment to the existing employees of the previous contractor. Second, whether a specific clause within the collective agreement, which purportedly required the offer of employment to such employees, was void by virtue of containing prohibited content, specifically content that did not pertain to the relations between an employer and its employees.

Judge Heffernan found that Academy Services was indeed in breach of the collective agreement. The court reasoned that the clause in question did pertain to the relations between an employer and its employees, as it regulated the transfer of employment in circumstances where a cleaning contract changed hands. Therefore, the clause did not contain prohibited content and was not void. The court rejected the argument that the union had approbated and reprobated by seeking to enforce the clause while also arguing it was void. Consequently, a declaration was made that Academy Services had breached the collective agreement.

Orders