United Voice v Valspar (WPC) Pty Ltd - [2014] FCAFC 34

FEDERAL COURT OF AUSTRALIA
United Voice v Valspar (WPC) Pty Ltd [2014] FCAFC 34

Citation: United Voice v Valspar (WPC) Pty Ltd [2014] FCAFC 34

Appeal from: United Voice v Valspar (WPC) Pty Ltd [2013] FCCA 1437

Parties: UNITED VOICE v VALSPAR (WPC) PTY LTD

File number: SAD 303 of 2013

Judges: MARSHALL, BUCHANAN AND PERRY JJ

Date of judgment: 27 March 2014

Catchwords: INDUSTRIAL LAW – appeal from the Federal Circuit Court of Australia – contravention of s 50 of the Fair Work Act 2009 (Cth) by an employer – contravention of a term of an enterprise agreement by an employer – direction to employees to take annual leave at specified times – antecedents of an enterprise agreement in construing a provision

Legislation:
Conciliation and Arbitration Act 1904 (Cth), s 28
Evidence Act 1995 (Cth), s 191
Fair Work Act 2009 (Cth), ss 12, 44(1), 50, 88(1)

The Australian Paint Industry (Manufacturing) Agreement 1975, cl 26
Wattyl Group of Companies Certified Agreement 2003, cl 39
Wattyl Group Enterprise Agreement 2010, cll 34, 47

Cases cited: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426
Metal Trades Annual Leave Case (1945) 55 CAR. 595
Re Metal Trades Award; Re Annual Leave (1963) 104 CAR 221
Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67
Short v FW Hercus Pty Ltd (1993) 40 FCR 511
United Voice v Valspar (WPC) Pty Ltd [2013] FCCA 1437

Mills, C P & Sorrell, G H, “Nolan and Cohen” Federal Industrial Law (5^th ed, Butterworths, 1975)

Date of hearing: 24 February 2014

Place: Sydney (via videolink to Adelaide)

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 74

Counsel for the Appellant: Dr C Bleby SC and Ms K Clark

Solicitor for the Appellant: Duncan Basheer Hannon

Counsel for the Respondent: Mr H Dixon SC and Mr M Seck

Solicitor for the Respondent: Thomsons Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

SAD 303 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:
UNITED VOICE
Appellant

AND:
VALSPAR (WPC) PTY LTD
Respondent

JUDGES:

MARSHALL, BUCHANAN, PERRY JJ

DATE OF ORDER:

27 MARCH 2014

WHERE MADE:

SYDNEY (VIA VIDEOLINK TO ADELAIDE)

THE COURT ORDERS THAT:
1.The appeal be upheld.
2.The matter be remitted to the Federal Circuit Court of Australia for further hearing in conformity with the reasons for judgment of the Full Court.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

SAD 303 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:
UNITED VOICE
Appellant

AND:
VALSPAR (WPC) PTY LTD
Respondent

JUDGES:

MARSHALL, BUCHANAN, PERRY JJ

DATE:

27 MARCH 2014

PLACE:

SYDNEY (VIA VIDEOLINK TO ADELAIDE)

REASONS FOR JUDGMENT
MARSHALL AND PERRY JJ:

We…

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.

Keep reading for free

Create a free CaseChat account to read United Voice v Valspar (WPC) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FCAFC 34
Decision Date: 27 March 2014

CaseChat Overview and Summary

United Voice, a union representing employees, brought an action against Valspar (WPC) Pty Ltd in the Federal Circuit Court of Australia, alleging that the employer had contravened section 50 of the Fair Work Act 2009 (Cth) by directing employees to take annual leave at specified times, and had also contravened a term of an enterprise agreement. Valspar (WPC) Pty Ltd appealed the decision to the Full Court of the Federal Court of Australia.

The appeal raised questions about the proper interpretation of an enterprise agreement term, and whether the employer's direction to employees to take annual leave at specified times constituted a contravention of the agreement. The appeal also raised questions about the relevance of the antecedents of the agreement in interpreting its provisions. The court considered whether the direction to take leave at specified times was a reasonable and lawful exercise of the employer's management rights, or whether it constituted an interference with the employees' right to take leave when they wished.

The Full Court held that the appeal should be upheld and the matter remitted to the Federal Circuit Court of Australia for further hearing. The court found that the antecedents of the enterprise agreement were relevant in interpreting its provisions, and that the employer's direction to employees to take annual leave at specified times was not a reasonable and lawful exercise of management rights. The court held that the employer's direction constituted an interference with the employees' right to take leave when they wished, and therefore constituted a contravention of the agreement. The appeal was therefore upheld and the matter was remitted to the Federal Circuit Court of Australia for further hearing in conformity with the reasons for judgment of the Full Court. The orders of the Full Court were that the appeal be upheld and the matter be remitted to the Federal Circuit Court of Australia for further hearing.

Orders

Orders of the court

1. The appeal be upheld.

2. The matter be remitted to the Federal Circuit Court of Australia for further hearing in conformity with the reasons for judgment of the Full Court.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	United Voice v Valspar (WPC) Pty Ltd [2014] FCAFC 34
Appeal from:	United Voice v Valspar (WPC) Pty Ltd [2013] FCCA 1437
Parties:	UNITED VOICE v VALSPAR (WPC) PTY LTD
File number:	SAD 303 of 2013
Judges:	MARSHALL, BUCHANAN AND PERRY JJ
Date of judgment:	27 March 2014
Catchwords:	INDUSTRIAL LAW – appeal from the Federal Circuit Court of Australia – contravention of s 50 of the Fair Work Act 2009 (Cth) by an employer – contravention of a term of an enterprise agreement by an employer – direction to employees to take annual leave at specified times – antecedents of an enterprise agreement in construing a provision
Legislation:	Conciliation and Arbitration Act 1904 (Cth), s 28 Evidence Act 1995 (Cth), s 191 Fair Work Act 2009 (Cth), ss 12, 44(1), 50, 88(1) The Australian Paint Industry (Manufacturing) Agreement 1975, cl 26 Wattyl Group of Companies Certified Agreement 2003, cl 39 Wattyl Group Enterprise Agreement 2010, cll 34, 47
Cases cited:	Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 Metal Trades Annual Leave Case (1945) 55 CAR. 595 Re Metal Trades Award; Re Annual Leave (1963) 104 CAR 221 Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 Short v FW Hercus Pty Ltd (1993) 40 FCR 511 United Voice v Valspar (WPC) Pty Ltd [2013] FCCA 1437
Mills, C P & Sorrell, G H, “Nolan and Cohen” Federal Industrial Law (5^th ed, Butterworths, 1975)
Date of hearing:	24 February 2014
Place:	Sydney (via videolink to Adelaide)
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	74
Counsel for the Appellant:	Dr C Bleby SC and Ms K Clark
Solicitor for the Appellant:	Duncan Basheer Hannon
Counsel for the Respondent:	Mr H Dixon SC and Mr M Seck
Solicitor for the Respondent:	Thomsons Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION	SAD 303 of 2013

BETWEEN:	UNITED VOICE Appellant
AND:	VALSPAR (WPC) PTY LTD Respondent

JUDGES:	MARSHALL, BUCHANAN, PERRY JJ
DATE OF ORDER:	27 MARCH 2014
WHERE MADE:	SYDNEY (VIA VIDEOLINK TO ADELAIDE)

JUDGES:	MARSHALL, BUCHANAN, PERRY JJ
DATE:	27 MARCH 2014
PLACE:	SYDNEY (VIA VIDEOLINK TO ADELAIDE)