[2010] FWAFB 1625 [2010] FWAFB 1625 Download Word Document The attached Decision replaces the Decision previously issued with the above code on 3 March 2010. The “Appearances” have been changed to show Mr D Broanda for AWUEQ. Glenda Cameron Associate to Senior Deputy President Cartwright Dated 4 March 2010 [2010] FWAFB 1625 FAIR WORK AUSTRALIA DECISION Fair Work Act 2009 s.604 - Appeal of decisions Australasian Meat Industry Employees Union, The v Woolworths Limited (C2009/11067) (C2009/10926) SENIOR DEPUTY PRESIDENT CARTWRIGHT DEPUTY PRESIDENT IVES COMMISSIONER BLAIR SYDNEY, 3 MARCH 2010 Appeal against decision [2009] FWA 849 of Senior Deputy President Richards at Brisbane on 16 November 2009 in matter number B2009 / 10670 – application for scope order. [1] This decision deals with two appeals which, by consent, were joined and heard together. The first is an appeal against the decision by Senior Deputy President Richards 1 dismissing the Australasian Meat Industry Employees Union’s (AMIEU) application for a scope order on the basis that the jurisdictional requirements of s.238(3) of the Fair Work Act 2009 (the Act) were not met. The second appeal concerns the Senior Deputy President’s refusal to make an order for the production of documents in that case. The AMIEU submitted that its second appeal falls away if the first appeal on the jurisdictional finding is unsuccessful. Accordingly, we proceeded at hearing and now in this decision to deal with the question of jurisdiction first. [2] S.604 of the Act provides: “(1) A person who is aggrieved by a decision: (a) made by FWA (other than a decision of a Full Bench or the Minimum Wage Panel); or (b) made by the General Manager (including a delegate of the General Manager) under the Fair Work (Registered Organisations) Act 2009; may appeal the decision, with the permission of FWA. (2) Without limiting when FWA may grant permission, FWA must grant permission if FWA is satisfied that it is in the public interest to do so. Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (3) A person may appeal the decision by applying to FWA.” [3] As observed by the Full Bench in LHMU v Coca-Cola Amatil Pty Ltd 2 : “An appeal is not available of right under the Act. Section 604 of the Act provides a right of appeal, subject to the permission of Fair Work Australia. The usual approach is to grant permission where the decision is affected by error or where it is in the public interest for permission to be granted.” [4] In considering whether or not the jurisdictional decision is affected by error, the focus for this full Bench is not on an exercise of discretion, but on whether Senior Deputy President Richards’ jurisdictional finding was correct or not. [5] S.238 is found in Division 8 of Part 2-4 of Chapter 2 of the Act. “Division 8 provides for Fair Work Australia to facilitate bargaining by making bargaining orders, serious breach declarations, majority support determinations and scope orders.” (s.169) It provides: “(1) A bargaining representative for a proposed single-enterprise agreement may apply to FWA for an order (a scope order ) under this section if: (a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and (b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover. No scope order if a single interest employer authorisation is in operation (2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement. Bargaining representative must have given notice of concerns (3) The bargaining representative may only apply for the scope order if the bargaining representative: (a) has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and (b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and (c) considers that the relevant bargaining representatives have not responded appropriately. When FWA may make scope order (4) FWA may make the scope order if FWA is satisfied: (a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and (b) that making the order will promote the fair and efficient conduct of bargaining; and (c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and (d) it is reasonable in all the circumstances to make the order. Matters which FWA must take into account (4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct. Scope order must specify employer and employees to be covered (5) The scope order must specify, in relation to a proposed single-enterprise agreement: (a) the employer, or employers, that will be covered by the agreement; and (b) the employees who will be covered by the agreement.” [6] The AMIEU applied for a scope order in the context of bargaining for an enterprise agreement for Woolworths Limited ( Woolworths) supermarkets. The background is set out in the Senior Deputy President’s Decision and the relevant factual matters are not in dispute. A draft agreement for Woolworths’ supermarkets was said to have been agreed in principle between Woolworths and the Shop Distributive & Allied Employees’ Association (SDA). The SDA had 18 times the AMIEU membership in supermarkets and approximately double the AMIEU’s representation of employees in supermarket meat units. [7] The Senior Deputy President found that the AMIEU was able under s.238(1) to apply for a scope order and was satisfied that no issue arose under s.238(2). He then dealt with each of the elements in s.238(3). [8] The AMIEU wrote to Mr Carr, Woolworths’ Corporate Workplace Relations Manager, on 8 September 2009, heading its letter “Re: Notice of concerns pursuant to s.238(3) of the Fair Work Act 2009 (Cth)”. The letter began: “I refer to the above [referring to the heading]. As required by that sub-section, I set out for your response our concerns in relation to the proposed national agreement that will cover employees working in meat units. Before outlining our concerns with the current bargaining process, it is necessary to set the recent context in which they have occurred.” [9] It then goes on to allege that, “Since 1998 it has been the progressive approach of Woolworths to deliberately exclude the AMIEU from negotiations for any new certified/collective agreements in many states.” It complains of Woolworths’ conduct and alleges that the current draft national agreement “… represents no more than a continuation of Woolworths approach to excluding the AMIEU and selecting SDA officials as their preferred bargaining unit.” [10] The letter then disputes the SDA’s ability to represent the industrial interests of meat unit employees and argues for two reasons that Woolworths is not bargaining in good faith and that “bargaining for the proposed agreement has not proceeded efficiently or fairly.” It seeks Woolworths’ response on this. [11] The letter seeks Woolworths’ response on another two “specific” matters, one specific to particular agreements to which the AMIEU and Woolworths are party and the second relating to statements made by Woolworths officers in supporting previous certification of those two agreements. [12] It concludes as follows: “Conclusion The AMIEU seeks your responses on: 1. The concerns detailed under the heading “The current proposed enterprise agreement” above; and 2. The specific concern detailed under “Depriving AMIEU members of their legitimate bargaining rights”; and 3. Whether you hold a contrary view to the proposition that meat units within Woolworths’ supermarket operations are a geographically, operationally or organizationally distinct group. The AMIEU holds the view that the only fair means to address our concerns are for meat unit employees to be covered by a separate enterprise agreement. However should you have any other proposal to address these concerns, we would welcome you detailing it for our consideration. Please be advised that we seek this response within seven (7) days of the date of this correspondence. Should we not receive anything by that date, we will consider ourselves at liberty to make an application to Fair Work Australia under s.238 of the Fair Work Act 2009 (Cth.) for “scope” orders. If you have any enquiries in relation to the above, please do not hesitate to contact me.” [13] The letter was signed by Mr Crawford, Federal Secretary of the AMIEU and copied respectively to the National Secretary of the SDA and the State Secretary of the AWU, Queensland. [14] Mr Carr replied by letter dated 14 September 2009 on behalf of Woolworths Limited and Woolworths (South Australia) Pty Ltd. 3 The reply responds on each of the three matters sought by the AMIEU, rejecting its stated concerns on each. [15] The Senior Deputy President proceeded on the basis that the AMIEU had satisfied the requirements of s.238(3) in relation to Woolworths. He was in our view correct to do so. But he also found that in this case the SDA was a “relevant bargaining representative” for the purposes of s.238(3) and that the AMIEU had not satisfied the requirements of s.238(3) by simply copying it in on the 8 September letter to Woolworths. Having considered all the argument before us, we agree on both counts. [16] The SDA had apparently reached “in principle” agreement with Woolworths on a draft national agreement. It could be expected to have a view on the AMIEU’s concerns as a participant in the bargaining process and it might not have agreed to support an agreement with the revised scope. That would likely be a consideration of significance for Woolworths and in the bargaining. We think in this case, on any reading of s.238(3), that the SDA was a “relevant bargaining representative.” It needed to be included in the process by operation of the Act. [17] As to whether the AMIEU did meet the requirements of s.238(3) in relation to the SDA, copying the SDA in on the letter of 8 September cannot be said in this case to have satisfied the requirements. It is a letter to Woolworths, raising concerns about Woolworths’ conduct and seeking Woolworths’ response on 3 matters, two of which were specific to the AMIEU and Woolworths. It could not reasonably be read as a notice given to the SDA setting out the AMIEU’s concerns to which the SDA could respond. The concerns in which the SDA was to have a reasonable time to respond are “those concerns” (s.238(3)(b)), that is, the concerns referred to in subsection (1) as set out in the notice. The concerns in the first of the 3 matters on which the AMIEU sought Woolworths’ response relate to Woolworths’ conduct. [18] Because of the nature of the AMIEU’s letter of 8 September we do not need to address the broad question of whether “copying in” one party on the notice given to another is sufficient compliance with s.238(3)(a). As a general approach, we would be reluctant to adopt a pedantic approach to such matters. Suffice to say that in this case the AMIEU in sending a copy to the SDA of its letter to Woolworths did not meet the requirements of ss.238(3)(a) and (b). It had no basis for the consideration required by s.238(3)(c). [19] Senior Deputy President Richards was also correct in our view to conclude that he had no equivalent power to that given in s.229(5) to consider the application anyway. The wording of s.238(3) is specific in setting out that the bargaining representative may only apply for the scope order if it complies with the requirements of sub-paragraphs (a) and (b) and (c). In this case, the AMIEU did not and its application had to be dismissed. [20] The Senior Deputy President ruled accordingly at paragraph 107 of his decision. Having already heard the matter over two days, with extensive materials filed, and noting that the substantive matter would remain in contest once the AMIEU had remedied the deficiency in its application, he went on in his decision to give the parties the benefit of his views on the matters Fair Work Australia would be required to consider under s.238(4) in deciding whether or not to issue a scope order. It is a matter for the AMIEU whether or not it wishes to file a new application after complying with the requirements of s.238(3). If it does so, the matter would obviously be dealt with by another member, but the AMIEU would need to address considerations of the kind to which the Senior Deputy President drew attention. [21] It will be apparent from what we have said that we are not satisfied of error or public interest considerations that would persuade us to grant the AMIEU permission to appeal. Permission is denied and the application is dismissed. [22] It follows that permission to appeal the Senior Deputy President’s decision not to order production of documents is also denied. SENIOR DEPUTY PRESIDENT Appearances : Mr C Buckley and Mr L Norris for AMIEU Mr G Hartcher SC , and Mr A Neal of counsel, for Woolworths Limited Ms S Burnley for SDAEA Mr D Broanda for AWUEQ Hearing details: 2010 Sydney February 16 1 [2009] FWA 849 2 [2009] FWAFB 668 at para 20 3 Letter attached to original application on file. Printed by authority of the Commonwealth Government Printer <Price code C, PR994300>