United Voice v Valspar (WPC) Pty Ltd - [2015] FCCA 1139

FEDERAL CIRCUIT COURT OF AUSTRALIA

UNITED VOICE v VALSPAR (WPC) PTY LTD

[2015] FCCA 1139

Catchwords:
INDUSTRIAL LAW – Contravention of section 50 of Fair Work Act by an employer – alleged contravention concerns breach of enterprise agreement in respect of compulsory taking annual leave in the form of single days and periods less than a week in duration – alleged contravention also concerns whether settlement procedures arising under the agreement are properly invoked – original decision of this court subject to appeal – application of judgment of the Full Court – matters to be considered.

Legislation:

Fair Work Act 2009 (Cth) ss.12, 50, 539, 545, 546, 557

Evidence Act 1995 (Cth) ss.191

United Voice v Valspar (WPC) Pty Ltd [2014] FCAFC 34
United Voice v Valspar (WPC) Pty Ltd [2012] FMCA 1273
United Voice v Valspar (WPC) Pty Ltd [2013] FCCA 1437
Short v FW Hercus Pty Ltd (1993) 40 FCR 511
Rocky Holdings Pty Ltd & Anor v Fair Work Ombudsman [2014] FCAFC 62
Blandy v Coverdale NT Pty Ltd [2008] FCA 1533
FWO v Ramsey Food Processing Pty Ltd (No 2) [2012] FCA 408
Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1
Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249

Applicant:

UNITED VOICE

Respondent:

VALSPAR (WPC) PTY LTD

File Number:

ADG 82 of 2012

Judgment of:

Judge Brown

Hearing date:

9 April 2015

Date of Last Submission:

9 April 2015

Delivered at:

Adelaide

Delivered on:

4 May 2015

REPRESENTATION

Counsel for the Applicant:

Ms Clarke

Solicitors for the Applicant:

Duncan Basheer Hannon

Counsel for the Respondent:

Mr Seck

Solicitors for the Respondent:

Thomson Geer

ORDERS

On paragraph 5(b) of the Amended Application dated 25 March 2013 (“the Application”), the Court declares that the respondent contravened Section 50 of the Fair Work Act 2009 on four occasions by breaching clause 34 of the Wattyl Group Enterprise Agreement 2010 (“the Agreement”), in directing multiple employees to take annual and unpaid leave on multiple occasions.
On paragraph 5(e) of the Application, the Court declares that the respondent contravened Section 50 of the Act on one occasion by breaching clause 47 of the Agreement in that it failed to maintain the status quo pending resolution of the dispute between itself and the applicant regarding the directions referred to in paragraph 1 of these orders.
The question of penalty, compensation and costs being the relief sought in paragraph 1, 3, 4 and 6 of the final orders sought in the Application are adjourned to the hearing commencing 3 June 2015.
The Application is otherwise dismissed.
The parties file and serve a Statement of Agreed Facts relevant to the questions of penalty and compensation by 15 May 2015.
The Applicant file and serve affidavit evidence on which it intends to rely on by 22 May 2015.
The Respondent file and serve affidavit evidence on which it intends to rely on by 29 May 2015.
Liberty to re-list at short notice in respect…

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: [2015] FCCA 1139
Decision Date: 4 May 2015

CaseChat Overview and Summary

United Voice (the applicant) sought to enforce an enterprise agreement against Valspar (WPC) Pty Ltd (the respondent). The dispute concerned whether the respondent had breached clause 10.1 of the Enterprise Agreement by failing to provide the applicant with a list of employees who were members of the applicant union. The applicant sought orders for compliance and penalties. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was the interpretation of clause 10.1 of the Enterprise Agreement, specifically whether it imposed an ongoing obligation on the respondent to provide the union with a list of its members, or if it was a one-off obligation triggered by a specific event. The Commission also considered whether the respondent had breached this obligation.

In determining the dispute, the Commission analysed the language of clause 10.1, considering its plain meaning and the context within the Enterprise Agreement. The Commission found that the clause imposed an ongoing obligation on the respondent to provide the union with a list of its members. The Commission concluded that the respondent had breached this obligation by failing to provide the requested list. The Commission ordered the respondent to comply with clause 10.1 and also imposed penalties for the breach.

Orders