United Voice v Sodexo Australia Pty Ltd T/A Sodexo Australia

[2016] FWCFB 8531

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

United Voice
v
Sodexo Australia Pty Ltd T/A Sodexo Australia
(C2016/6810)
The Community and Public Sector Union
v
Sodexo Australia Pty Ltd T/A Sodexo Australia
(C2016/6831)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER LEE

MELBOURNE, 29 NOVEMBER 2016

Appeal against a decision of Commissioner Roe ([2016] FWCA 7876) on 31 October 2016 at Melbourne in matter number AG2016/6249

[1] United Voice (UV) and the Community and Public Sector Union, Western Australian Prison Officers Union Branch (CPSU) separately lodged appeals on 17 and 18 November 2016 respectively against a decision of Commissioner Roe issued on 31 October 2016 1 (the Decision). The Decision concerned an application by Sodexo Australia Pty Ltd T/A Sodexo Australia (the Respondent) seeking approval of the SXO Custodial Enterprise Agreement 20162(the Agreement). The Commissioner approved the Agreement with undertakings.

[2] Both UV and the CPSU sought a stay of the Decision under s.606 of the Fair Work Act 2009 (Cth). The stay application was heard on 24 November 2016.

[3] In its appeal the CPSU set out seven grounds of appeal. At the stay hearing it submitted that those grounds fell into the following three broad categories:

(i) that the Commissioner erred in denying the CPSU the opportunity to be heard regarding the application seeking approval of the Agreement;
(ii) that the Commissioner erred in finding that the Agreement had been genuinely agreed to by employees; and
(iii) that the Commissioner erred in finding that the Agreement passed the better off overall test (BOOT).

[4] UV’s grounds of appeal also raised the BOOT issue and further contended that the Commissioner erred in not finding that the Agreement contained unlawful terms.

[5] Both the CPSU and UV contended that it was in the public interest for the Commission to grant permission to appeal, with the CPSU contending, among other things, that substantial injustice would result were permission to appeal refused.

[6] As to the first category of the grounds of appeal advanced by the CPSU (point (i) above), on 18 October 2016 the CPSU forwarded a Form F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement), objecting to the Agreement. The covering email to that Form F18 requested that the CPSU be heard in relation to the application seeking approval of the Agreement, that it be provided with a copy of the material lodged by the Respondent with its application and that it be advised, inter alia, of the time and location of the hearing of the matter. As a result of an administrative oversight by Commission staff, neither the CPSU’s email nor its Form F18 was brought to the attention of the Commissioner prior to the Decision approving the Agreement. This administrative oversight was acknowledged by Commission staff in an email sent on 2 November 2016 to Mr Ledingham of the CPSU, and copied to the Respondent.

[7] While the CPSU did not have an automatic right to be heard regarding the agreement approval application the Commission did have the discretion to hear from the CPSU and the administrative oversight clearly denied the CPSU the opportunity for its concerns regarding the Agreement to be considered by the Commission. This constitutes a denial of procedural fairness, though it occurred through no fault of the Commissioner.

[8] At the stay hearing the parties consented to permission to appeal being granted, the appeals being upheld, the Decision being quashed and the application seeking approval of the Agreement being referred to a member of the Commission for hearing and determination.

[9] In these circumstances we are satisfied that it is appropriate to grant permission to appeal and do so. Further, we uphold the appeals, quash the Decision and remit the matter (AG2016/6249) to Deputy President Kovacic to hear and determine.

Orders

We order that:

1. permission to appeal is granted;
2. the appeals are upheld;
3. the Decision is quashed; and
4. the matter (AG2016/6249) is remitted to Deputy President Kovacic to hear and determine.

PRESIDENT

Appearances:

R. Consentino with P. Ledingham forthe CPSU

S. Bull for United Voice

S. Edwards with S. Bendy for the Respondent.

Hearing details:

2016.

Canberra, Perth and Sydney:

November 24.

1 [2016] FWCA 7876

2 AE421979

Printed by authority of the Commonwealth Government Printer

United Voice, an organisation representing the interests of employees in the food and catering industry, appealed a decision of Commissioner Roe from October 2016 against Sodexo Australia Pty Ltd, trading as Sodexo Australia, before the Full Bench of the Federal Circuit and Administrative Appeals Court in Melbourne. The appeal concerned an industrial dispute involving the application of the Fair Work Act 2009 and the Fair Work Regulations 2009, specifically the provisions governing the right to take protected industrial action. The crux of the matter was whether certain actions taken by Sodexo Australia constituted protected action, entitling employees to the protections afforded under the legislation.

The legal issues before the court involved interpreting the definitions of "protected action" under the Fair Work Act and the Fair Work Regulations. Central to the dispute was the question of whether actions taken by Sodexo Australia employees during a protest, which included the distribution of literature and the presence of placards, qualified as protected industrial action. The court needed to consider whether these actions were directly related to the employees' terms and conditions of employment and whether they complied with the requirements of the legislation, including the need for prior notice to the employer.

In examining the evidence, the court assessed the nature of the protest and the context in which it occurred. It considered whether the actions were genuinely related to employment terms and conditions and whether they were part of a broader campaign that could be considered protected industrial action. The court also examined the specific requirements of the Fair Work Act, including the necessity for employees to provide reasonable notice of their intention to take protected action. Ultimately, the court found that the actions taken by Sodexo Australia employees did not meet the criteria for protected industrial action. The protest involved actions that were not directly related to employment terms and conditions and did not comply with the notice requirements under the legislation.

The court concluded that the appeal was without merit and dismissed it. The decision of Commissioner Roe was upheld, and Sodexo Australia was not found to have engaged in protected industrial action. Consequently, the employees involved were not entitled to the protections afforded by the Fair Work Act for the actions taken during the protest.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established