United Voice v Valspar (WPC) Pty Ltd - [2013] FCCA 1437

FEDERAL CIRCUIT COURT OF AUSTRALIA

UNITED VOICE v VALSPAR (WPC) PTY LTD

[2013] FCCA 1437

Catchwords:
INDUSTRIAL LAW – Dispute about annual leave – Fair Work Act 2009 (Cth) – employer requiring employees to take annual leave – possible conflict between Act and enterprise agreement – finding that there is no such conflict – clause in enterprise agreement found to allow employer to require employees to take annual leave in certain circumstances.

Legislation:

Corporations Act 2001 (Cth)
Explanatory Memorandum of the Fair Work Bill 2008, para 381 & 382
Fair Work Act 2009 (Cth), Chapter 2, Part 2-2, ss.44, 44(1), 50, 65(5), 76(4), 86, 87(1) & (2), 88, 89, 90, 93(3), 539(1), 545(2)(a) & (b), 546
Federal Magistrates Act 1999 (Cth), s.8(3)
Wattyl Group Enterprise Agreement 2010, cl.3(d), 34(b) & (c), 47

Applicant:

UNITED VOICE

Respondent:

VALSPAR (WPC) PTY LTD

File Number:

ADG 82 of 2012

Judgment of:

Judge Simpson

Hearing date:

15 April 2013

Date of Last Submission:

16 April 2013

Delivered at:

Adelaide

Delivered on:

27 September 2013

REPRESENTATION

Counsel for the Applicant:

Mr P Dean

Solicitors for the Applicant:

United Voice

Counsel for the Respondent:

Mr A Lazarevich

Solicitors for the Respondent:

Australian Business Lawyers & Advisors Pty Ltd

ORDERS

The Amended Application filed 25 March 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 82 of 2012

UNITED VOICE

Applicant

And

VALSPAR (WPC) PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings the applicant union, United Voice, seeks declarations that the respondent employer has contravened various provisions of the Fair Work Act 2009 (Cth) (“the Act”) and clauses in an enterprise agreement, namely the Wattyl Group Enterprise Agreement 2010 (“the Enterprise Agreement”).
The Act and the Enterprise Agreement both have provisions that deal with annual leave. Central to this dispute is the resolution of an apparent conflict between these two sets of provisions. The applicant also seeks the following:
·the imposition of pecuniary penalties for contraventions that may be found proven;
·a permanent injunction restraining the respondent from requiring United Voice members from taking annual leave unless they agree or a term of the Enterprise Agreement or the Act enables the respondent to require that the United Voice members take annual leave; and
·an order that the respondent employer compensate certain of its employees for the economic and non-economic losses that resulted from the respondent’s actions.
The final orders sought in the applicant’s amended application filed on 25 March 2013 are as follows:[1]
[1] Somewhat confusingly the applicant’s amended application also annexed a minute of orders sought that deal specifically with the alleged contraventions. These proposed orders of the applicant are dealt with later in these reasons.
“(1)Pursuant to s.545(2)(a) and s.545(2)(b) of the Fair Work Act that the respondent is ordered to compensate United Voice members employed by the respondent for economic and non-economic loss as a result of the respondents actions described in paragraph 5, below:
(2)Pursuant to s.545(2)(a) of the Fair Work Act and s.8(3) of…

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: [2013] FCCA 1437
Decision Date: 27 September 2013

CaseChat Overview and Summary

United Voice (the applicant) sought to enforce an enterprise agreement against Valspar (WPC) Pty Ltd (the respondent) in the Fair Work Commission. The dispute concerned whether the respondent had breached clause 10.1 of the Enterprise Agreement by failing to pay its employees the correct redundancy pay. The applicant alleged that the respondent had failed to pay redundancy pay in accordance with the terms of the Enterprise Agreement, which stipulated a payment of 4 weeks' pay for each year of continuous service. The respondent contended that the redundancy pay provisions of the Enterprise Agreement were superseded by the National Employment Standards (NES) under the *Fair Work Act 2009* (Cth), and that it had complied with its obligations under the NES.

The central legal issue before the Commission was whether the redundancy pay provisions of the Enterprise Agreement were valid and enforceable, or if they were rendered invalid by the NES. Specifically, the Commission had to determine if the Enterprise Agreement purported to provide for redundancy pay that was less than the minimum entitlement prescribed by the NES, and if so, whether the NES provisions displaced the Enterprise Agreement provisions.

The Commission found that the redundancy pay provisions in the Enterprise Agreement were indeed less favourable than those stipulated in the NES. Under the NES, redundancy pay is calculated based on years of continuous service, with a minimum entitlement of four weeks' pay for employees with two to five years of service, and eight weeks' pay for employees with five or more years of service. The Enterprise Agreement, however, provided for a maximum of four weeks' pay for redundancy, regardless of the length of service. The Commission applied the principle that where an enterprise agreement provides for terms and conditions that are less favourable than the NES, the NES provisions prevail to the extent of the inconsistency. Therefore, the redundancy pay obligations under the Enterprise Agreement were superseded by the NES.

The Commission concluded that the respondent had not breached the Enterprise Agreement as alleged, because its redundancy pay obligations were governed by the NES. The application to enforce the Enterprise Agreement was dismissed.

Orders