FWC backtracks: employer denied 'natural justice'

Cases

FWC backtracks: employer denied 'natural justice'

The FWC has backtracked on a decision to dismiss a late enterprise agreement application, stating the employer should have been given a time extension to get its “tackle in order.”

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The FWC has backtracked on a decision to dismiss a late enterprise agreement application, stating the employer should have been given a time extension to get its “tackle in order.”

In the original case, Sodexo applied under s185 of the Fair Work Act to have its enterprise agreement approved. The application was not made within the 14- day requirement, however, Sodexo argued for an extension of time as allowed by s185(3)(b). 

In November last year, the commissioner from the original decision held a mention/directions hearing, by telephone. This meeting was adjourned and Sodexo and the respondents, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Australian Workers’ Union (AWU) unions agreed on an expedited consent directions. 

However, the commissioner did not permit the solicitor appearing for Sodexo to inform her of the proposed expedited directions, expressing concern that the commission had not been provided with the contact details for each of the employee bargaining representatives. 

When Sodexo’s solicitor later raised the proposed expedited directions again, the commissioner stated that she would “come to that in a moment” but instead proceeded to raise the fact that the application had been filed out of time. The commissioner refused Sodexo an extension, stating that the application had “a raft of issues” and was unlikely to get approved and therefore the process would “have to be started again”. 

Sodexo “denied natural justice” 


Sodexo’s solicitor contended that the commissioner could not make the decision to refuse Sodexo an extension without the matter being dealt with in full. 

The FWC granted Sodexo permission to appeal, stating that procedural fairness required that Sodexo be given a reasonable opportunity to present its arguments for an extension of time. The “raft of issues” should also have been addressed properly by the commissioner.

According to the FWC, these issues included alleged defects in the notice of employee representational rights NERR, an alleged failure to provide certain employees with a NERR, identification of the correct underlying award, issues concerning whether employees had genuinely agreed to the enterprise agreement as per s188(1)(c) of the Fair Work Act, and issues concerning the better off overall test.

The FWC also said that Sodexo should have been given more time to get its “tackle in order” and file relevant material.

It concluded that Sodexo was denied a reasonable opportunity to present its case in support of its application for a three-day extension of time and that “Sodexo was therefore denied natural justice.”

Read the judgment


Sodexo Remote Sites Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union; Australian Workers’ Union [2019] FWCFB 690 (7 February 2019)
 
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