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[2013] FWC 6892
General information, not legal advice.
Fair Work Commission
2013-09-25
Commissioner Hampton
Original judgment source is linked above.
(#P27_939) The application was lodged in the name of The Australian Workers' Union, however it was made by the SA branch and the proceedings were ultimately conducted on that basis.
(#P30_1866) Sodexo 3.
(#P35_2118) B2013/1013.
(#P36_2244) Section 228 of the Act.
(#P39_2699) In transcript following an expedited hearing.
(#P40_2791) The failure to provide Sodexo with notice of the concerns in relation to the alleged failure to meet the good faith bargaining obligations (s.229(4)(b) of the Act).
(#P41_3210) Transcript of proceedings before SDP Hamberger - PN666.
(#P89_7071) Notice provided to Sodexo on 19 July 2013. There are other grounds of the two applications set out in the initiating documents.
(#P92_7268) It is sufficient that the concerns are in relation to the matters in s.238(1)(b) and that they are not fanciful or asserted for the purpose of attracting jurisdiction see: AMIEU v Woolworths Ltd [2009] FWA 849 per Richards SDP.
(#P139_11614) [2010] FWAFB 1625.
(#P154_14109) Explanatory Memorandum to the Fair Work Bill 2009 at Item 983.
(#P167_16483) Transcript PN1220 to PN1222. Ms Cockrane for Sodexo did however later refer to the circumstances of some individual bargaining representatives (PN1295).
(#P170_17353) AWU1 at par 34 and 35.
(#P173_17642) Transcript PN377.
(#P174_17776) Transcript PN374.
(#P179_18351) AMIEU v Woolworths Ltd [2009] FWA 849 per Richards SDP at par [88].
(#P184_19279) S.228(1)(f) of the Act.
(#P195_20915) These aspects were obiter and were not considered by the Full Bench.
(#P198_21228) [2010] FWA 9211, 30 November 2010 per Cartwright SDP.
(#P199_21500) Ibid at par [14].
(#P200_21842) Ibid at par [15].
(#P203_22046) [2010] FWA 1723, 2 March 2010 per Cloghan C.
(#P204_22314) Ibid at par [32].
(#P219_24233) The evidence about whether the separate claim for Olympic Dam was raised earlier than that is uncertain.
(#P222_24733) Sodexo 4 - JC13.
(#P231_26388) Sodexo 4 - JC17.
(#P324_37678) Marcus Hanson - PN373.
(#P351_41189) AC317498.
(#P352_41347) AC321791.
(#P355_41999) Sodexo 3: BH-1 and BH-4.
(#P362_42797) 28% of employee voted in the July 2013 ballot. That proportion was higher at both Prominent Hill and Olympic Dam sites.
(#P365_43497) Including United Firefighters' Union of Australia v Metropolitan fire & Emergency Services Board [2010] FWAFB 3009; The Association of Professional Engineers, Scientists and Managers, Australia and others v Australian Red Cross Blood Service [2011] FWA 2914; Royal District Nursing Service Limited v Health Services Union of Australia and Australian Nursing Federation [2012] FWAFB 1489.
(#P372_45267) See Royal District Nursing Service Limited v Health Services Union of Australia and Australian Nursing Federation [2012] FWAFB 1489 and the decision at first instance - Health Services Union of Australia and Australian Nursing Federation v Royal District Nursing Service Limited [2011] FWA 8033 at pars [56] to [70].
(#P383_47229) This was acknowledged by the AWU SA - transcript PN156.
(#P389_48205) A retention bonus is paid at the Olympic Dam site however this is not part of the Olympic Dam agreement, it is being reviewed and has operated administratively to this point.
(#P403_52261) The 2008 collective agreement did so through different schedules. An approach that provided increases based upon existing rates is also conceivable as part of a national agreement.
(#P412_53933) Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and others [2012] FWAFB 2206.
(#P413_54172) The concept of "taking into account" is comparable to "must have regard to" and in that context see: R v Hunt: Ex parte Sean Investments Pty Ltd [1979] HCA 32.
(#P418_55018) Taken from each of the originating applications.
(#P425_55977) Proposed agreement as provided to employees in relation to the July ballot.
(#P428_56321) In general terms, s.58 preserves the application of an existing enterprise agreement during its nominal life and a later agreement cannot apply until after that time. Both the 2008 collective agreement and the Olympic Dam agreement have passed their nominal expiry dates.
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