The attached document replaces the document previously issued with the above code on 9 August 2022.

[2022] FWCFB 151

Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2021] FWCA 4524 of Deputy President Mansini at Melbourne on 28 July 2021 in matter number AG2021/6101

[1] In this matter, the United Workers' Union (UWU) has, pursuant to s 604 of the Fair Work Act 2009 (FW Act), appealed the decision[1] made by Deputy President Mansini[2] on 28 July 2021 to approve, with undertakings, the Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021 (Hot Wok Agreement). Permission is required for the appeal. The appeal was lodged on 31 May 2022, approximately ten months after the approval decision was published. Rule 56(2) of the Fair Work Commission Rules 2013 (FWC Rules) provides that a notice of appeal under s 604 of the FW Act must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time as may be allowed by the Commission on application by the appellant. Accordingly, the UWU requires the grant of an extension of time for its appeal.

[2] The UWU's appeal is brought on four grounds:

(1) The Commission was not able to be satisfied that the Hot Wok Agreement passed the better off overall test (BOOT) within the meaning of s 186(2)(d) and s 193(1) of the FW Act and therefore the Agreement was incapable of approval.

(2) The Commission was not able to be satisfied that the Hot Wok Agreement was genuinely agreed to by employees to be covered by the agreement within the meaning of s 186(2)(a) of the FW Act.

(3) The Commission was not able to be satisfied that the group of employees covered by the Hot Wok Agreement was fairly chosen within the meaning of s 186(3) of the FW Act.

(4) The Commission was not able to be satisfied that the undertakings given could remedy the failures to comply with the requirements of the FW Act within the meaning of section 190(2) of the FW Act.

[3] Pursuant to directions made on 1 June 2022, the UWU filed written submissions in relation to the appeal on 22 June 2022 together with an affidavit affirmed by Martin John de Rooy, an organiser employed by the UWU, on 21 June 2022. The respondent to the appeal, Hot Wok Food Makers Pty Ltd, filed its submissions pursuant to the directions on 13 July 2022. The appeal was heard before us in Brisbane on 21 July 2022. During the hearing, the affidavit of Mr de Rooy was admitted without objection. Additionally, the respondent was provided with mathematical modelling prepared by the Commission concerning whether the Hot Wok Agreement passed the BOOT. The respondent was allowed an opportunity to file written submissions in response to this modelling after the conclusion of the hearing, and it did so on 27 July 2022. The respondent also advised in the same submissions that, if the appeal was upheld and the approval of the Hot Wok Agreement quashed, it would not seek to provide further undertakings on any rehearing of the application for approval of the agreement.

[4] On 1 August 2022, the chambers of the presiding member sent the following email to the parties on behalf of the Full Bench:

"In the event that permission to appeal is granted and the appeal is upheld, it will be necessary for the application made by the respondent to this appeal for approval of the Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021 (Hot Wok Agreement) to be reconsidered, having regard to all the approval criteria in ss 186 and 197 (sic, "187") of the Fair Work Act 2009 (FW Act). The Full Bench would prefer to deal with all potential issues arising in this matter in a single decision. In this respect, the respondent is requested to provide further information as follows:

1. The respondent was requested at the hearing of this matter to provide advice as to whether, in the event that the Hot Wok Agreement was found not to pass the better off overall test, approval of the Hot Wok Agreement was nonetheless sought under s 189 of the FW Act (as indicated in the Form F17 declaration which accompanied the application for approval of the Hot Wok Agreement). Such advice has not yet been provided.

2. The Form F17 declaration states at [7] that the Staff Services Pty Ltd Certified Agreement (Staff Services Agreement) currently (i.e. at the date of the declaration) applied to employees covered by the Hot Wok Agreement. As far as the Full Bench is aware, Hot Wok Food Makers Pty Ltd and its employees were never covered by the Staff Services Agreement. Accordingly, the respondent is requested to identify the corporate entity which employed each of the five employees who made the Hot Wok Agreement in the period from 2 June 2021 (when the notice of employee representational rights was issued) to 25 June 2021 (when the agreement was made).

3. Two of the employees who signed the Hot Wok Agreement were Ms Suet Ying Lu (sic, "Wu"), who is referred to elsewhere in the materials as Carol Wu with the email address Carol.Wu@mantlegroup.com, and Ms Shanshan Li, who is also referred to in the materials as Shirley Li with the email address Shirley.Li@mantlegroup.com. In material before the Commission in two other matters (AG2020/4190 and C2021/17) which involved an entity within Mantle Group Hospitality (of which Hot Wok Food Makers Pty Ltd forms a part):

1. Ms Wu identified herself in a witness statement dated 16 June 2021 as the "Venue Manager" for the Milano restaurant, with responsibility for managing the day-to-day operations of the venue, and the recruitment, management, rostering, disciplining and termination of staff; and

2. In an email dated 11 May 2021, Ms Li was identified by Mr Darren Latham, Chief HR Officer for Mantle Group Hospitality, as working with him as "the HR Co-ordinator, among other roles in the business". Other material also identified her as having held the roles of Payroll Manager and International Business Manager.

The respondent is requested to confirm the positions held by Ms Wu and Ms Li in the period 2 June 2021 to 25 June 2021, and to explain how it is said that they fell within the coverage of the Hot Wok Agreement at the time it was made, including what classification in the Hot Wok Agreement (if any) is said to have applied to them. The respondent is requested to provide the same information concerning the other three employees who made the Hot Wok Agreement which, on the materials before the Full Bench, include Mr Jack Nicholson and Mr Ashmit Subedi.

The respondent is requested to provide the information requested in (2) and (3) above by way of a statutory declaration made by a person with the requisite authority and knowledge.

The Full Bench requests that this information is provided by 5:00pm (AEST) Monday 8 August 2022."

[5] The respondent did not comply with our request in the above email. Instead, on 8 August 2022, lawyers acting for the respondent sent the following email to the Commission (omitting formal parts):

"In the event that the extension of time and permission to appeal is granted and the appeal is upheld then we are instructed that Hot Wok intends to withdraw the application pursuant to Section 588."

[6] On the basis of matters (2) and (3) in the Commission's email of 1 August 2022, we hold a concern that the Hot Wok Agreement may not have been made in accordance with s 182(1) of the FW Act, in that:

(1) some or all of the employees who purportedly voted to approve it may not have been employed by the respondent, being the employer under the agreement, at the time the agreement was purportedly made; and

(2) some or all of the employees who purportedly voted to approve the agreement would not be covered by the agreement because (whether or not they were employed by the respondent) their jobs did not fall within the classifications in the agreement.

[7] Consequently, we are concerned that:

(A) the Hot Wok Agreement may not have been genuinely agreed in accordance with the requirement in s 188(1)(b) of the FW Act and should therefore not have been approved by the Deputy President; and

(B) the Form F17 declaration made by Mr Darren Latham on 8 July 2021 in support of the application for approval of the Hot Wok Agreement may have contained a number of incorrect statements of fact, with the possibility that this was intentional.

[8] Our concerns in this respect have been amplified by the fact that, having been requested to provide information to address the identified matters of concern by 8 August 2022, the respondent extraordinarily and contumaciously failed to do so.

[9] In our email of 1 August 2022, we indicated that the matters of concern arose in the context of the need to redetermine the application for approval of the Hot Wok Agreement in the event that the UWU's appeal was upheld. However, we consider that the matters are equally relevant to the antecedent issues of whether an extension of time to file the appeal should be allowed, whether permission to appeal should be granted and whether the appeal should be upheld. The respondent's foreshadowed intention to "withdraw" the application for approval of the Hot Wok Agreement should the appeal be upheld does not, therefore, dispose of our concerns for the purpose of this proceeding.

[10] It has also come to our attention that, on 24 May 2021 in matter AG2021/5292, the respondent filed an earlier application for approval of an agreement entitled "Hot Wok Food Makers Pty Ltd Workplace Agreement 2021". This agreement, which was purportedly made on 12 May 2021, appears to be in terms that are relevantly identical to the Hot Wok Agreement, and was likewise signed by Mr Latham on behalf of the respondent, and by Ms Shirley Li (and witnessed by Ms Suet Ying Wu) on behalf of employees of the respondent. This application was, without any explanation, discontinued on 2 June 2021 - the same day as the respondent is said to have issued a notice of employee representational rights in respect of bargaining for the Hot Wok Agreement. These matters have given rise to a further concern on our part that there may be reasonable grounds for believing that the Hot Wok Agreement was not genuinely agreed to by employees and, accordingly, that the agreement was not genuinely agreed in accordance with the requirement in s 188(1)(c) of the FW Act.

[11] In light of the respondent's failure to comply with the request for further information contained in our email of 1 August 2022, our provisional view is that we should:

(1) make an order under s 590(2)(a) and (d) of the FW Act requiring the following persons to attend a further hearing in the Commission for the purpose of giving evidence:

(2) make an order under s 590(2)(c) of the FW Act for the respondent, and any relevant related entity of the respondent, to produce documents evidencing the employment (including the job responsibilities and duties) of Ms Shanshan (Shirley) Li, Ms Suet Ying (Carol) Wu, Mr Jack Nicholson and Mr Ashmit Subedi in the period 14 May 2021 to 28 July 2021.

[12] We propose to give the parties an opportunity to respond to the provisional view above. For this purpose, we will list the matter for a short hearing (not exceeding one hour) on Friday 12 August 2022 at 1:00pm (AEST). If both parties advise the chambers of the presiding member beforehand that they do not oppose the provisional view, the hearing will be vacated and the foreshadowed orders will be issued.

[1] [2021] FWCA 4524

Printed by authority of the Commonwealth Government Printer