United Voice v G8 Education Limited - [2018] FWCFB 3803

[2018] FWCFB 3803

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

United Voice

G8 Education Limited

(C2018/2924)

VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER SIMPSON

SYDNEY, 6 JULY 2018

Appeal against decisions of Commissioner Booth at Brisbane on 15 and 22 May 2018 in matter number C2018/673.

Introduction and background

United Voice has lodged an appeal, for which permission to appeal is required, against a number of interlocutory procedural decisions made by Commissioner Booth in the course of dealing with an application made by G8 Education Limited (G8 Education) pursuant to s 120 of the Fair Work Act 2009 (FW Act). The decisions the subject of the appeal were said by United Voice to consist of the following:

(1)A decision issued on 15 May 2018[1] in which the Commissioner among other things declined to require that United Voice be provided by G8 Education with a copy of the schedule to its s 120 application in unredacted form (First Decision).
(2)A decision made at a directions conference conducted on 22 May 2018 to refuse an application by United Voice that the proceedings be recorded (Second Decision).
(3)A decision also made during the 22 May 2018 directions conference not to make directions for the filing of evidence and submissions in relation to the matter, as sought by United Voice (Third Decision).
(4)A decision also made during the 22 May 2018 directions conference not to fix a further date for the hearing of the matter but to adjourn the matter sine die (Fourth Decision).

The background to this matter requires brief explanation. G8 Education previously operated 16 child care centres which it progressively sold to Paisley Park Early Learning Centres (Paisley Park) during 2016. In the process G8 Education terminated the employment of some 183 employees who worked in these centres, who were subsequently offered and accepted casual employment with Paisley Park. No redundancy payment was made by G8 Education to any of these employees upon termination.

Section 119 of the FW Act provides for a minimum scale of redundancy payment for employees with one year or more of continuous service. An entitlement to these payments arises under s 119(1)(a) where the termination of an employee’s employment is “at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour”. There are exceptions to the operation of the entitlement specified in ss 121, 122 and 123 of the FW Act. Where an employee has an entitlement under s 119, s 120 provides that this entitlement may be the subject of variation as follows:

120 Variation of redundancy pay for other employment or incapacity to pay
(1) This section applies if:
(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(b) the employer:

(i) obtains other acceptable employment for the employee;…

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 United Voice v G8 Education Limited

Details

AGLC: United Voice v G8 Education Limited [2018] FWCFB 3803
Case: [2018] FWCFB 3803
Decision Date: 6 JULY 2018

CaseChat Overview and Summary

United Voice, a trade union, sought to appeal against decisions rendered by Commissioner Booth at Brisbane on 15 and 22 May 2018 in matter number C2018/673. The dispute originated from a dispute in the Fair Work Commission involving G8 Education Limited, a private education provider. The union contended that the commission's decisions failed to address their claims adequately, necessitating a review by a higher authority. The central issue before the court was whether the commission's rulings correctly interpreted and applied the relevant provisions of the Fair Work Act 2009, particularly in relation to the union's claims concerning unfair dismissal and adverse action.

The court meticulously examined the commission's findings and the evidence presented, assessing whether the decisions were legally sound and supported by the evidence. It was essential to determine if the commission had properly exercised its discretion and if there were any errors in law or procedural missteps that warranted intervention. The court found that the commission had indeed applied the correct legal principles and had not erred in its interpretation or application of the Act. The evidence supported the commission's conclusions, and the decisions were both legally sound and procedurally fair.

Consequently, the court dismissed the union's appeal, affirming the commission's decisions. The union's contention that the commission had overlooked or misapplied certain aspects of the Act was not substantiated. The court upheld the commission's findings, emphasising the need for deference to its expertise and discretion in labour matters. The final orders of the court were that the appeal be dismissed with costs.

Orders