United Voice v Restaurant and Catering Association of Victoria

In the matter of United Voice v Restaurant and Catering Association of Victoria, the Fair Work Commission's Full Bench conducted a review of the Restaurant Industry Award 2010, varying the penalty rates within it. United Voice, an applicant, sought judicial review of the Full Bench's decision, arguing that the Commission had failed to provide procedural fairness by not allowing the opportunity to lead further evidence or make submissions in respect of s 134(1)(da) of the Fair Work Act 2009 (Cth). This section pertains to the need to provide additional remuneration for various work conditions, which was amended after the hearing but before the publication of the reasons for decision. The applicant had the opportunity to make submissions after the reasons for decision were published and before the variation to the Award was formally made.

The court was tasked with determining whether the Full Bench's failure to allow the opportunity to lead further evidence or make submissions in respect of s 134(1)(da) prior to the publication of its reasons for decision constituted a denial of procedural fairness. The court also had to consider whether the Full Bench's power to admit further evidence and take into account any other information or evidence, under s 607(2) of the Fair Work Act, negated any procedural unfairness. Additionally, the court needed to assess whether the applicant's ability to make submissions after the reasons for decision were published and before the variation to the Award was formally made, but after s 134(1)(da) had come into effect, remedied any procedural unfairness.

The court found that the Full Bench's failure to allow the opportunity to lead further evidence or make submissions in respect of s 134(1)(da) prior to the publication of its reasons for decision did not constitute a denial of procedural fairness. The court reasoned that the Full Bench had the power to admit further evidence and take into account any other information or evidence, under s 607(2) of the Fair Work Act, which allowed the applicant to make submissions after the reasons for decision were published and before the variation to the Award was formally made. The court concluded that the applicant's ability to make submissions after the reasons for decision were published and before the variation to the Award was formally made, but after s 134(1)(da) had come into effect, remedied any procedural unfairness.

The court dismissed the originating application for relief under s 39B(1A) of the Judiciary Act 1903 (Cth), and made no order as to costs under s 570 of the Fair Work Act.