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Fair Work Act 2009
s.604 - Appeal of decisions
Cotton On Group Services Pty Ltd
v
National Union of Workers
(C2014/6789)
VICE PRESIDENT WATSON
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER BISSETT
MELBOURNE, 23 DECEMBER 2014
Appeal against decision [[2014] FWC 6601] and Order PR555900 of Commissioner Roe at
Melbourne on 24 September 2014 in matter number B2014/937 - Whether group of employees
to be covered by proposed enterprise agreement fairly chosen - Whether regard was given to
irrelevant considerations - Whether correct principle applied - Permission to appeal denied -
Fair Work Act 2009, ss. 236, 237.
[1] This decision concerns an application for permission to appeal by Cotton On Group
Services Pty Ltd (Cotton On) against a decision of Commissioner Roe handed down on 24
September 2014. The decision of the Commissioner concerned an application for a majority
support determination made by the National Union of Workers under s. 236 of the Fair Work
Act 2009 (the Act) in relation to the warehouse employees at the Cotton On warehouse at
Wacol, Queensland.
[2] At the conclusion of the hearing of this matter on 27 November 2014 we announced
our decision to deny permission to appeal and vacate the stay order issued by the Commission
pending the hearing and determination of the appeal. These are our reasons for that decision.
[3] The decision under appeal was to make a majority support determination with respect
to the approximately 91 Cotton On warehouse employees at Wacol. Cotton On employs a
total of 118 employees at Wacol in a variety of capacities including managerial and
administrative employment. Cotton On also has a similar warehouse facility in Lara, Victoria.
[4] The grounds of appeal challenge the finding by the Commissioner that the group of
employees covered by the determination were “fairly chosen” - a prerequisite for the making
of a determination in s. 237(2)(c) of the Act. Sub-section (3A) provides:
“(3A) If the agreement will not cover all of the employees of the employer or
employers covered by the agreement, the FWC must, in deciding for the purposes of
paragraph (2)(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.”
[2014] FWCFB 8899
REASONS FOR DECISION
AUSTRALIA FairWork Commission
[2014] FWCFB 8899
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[5] A decision on such a matter is a discretionary decision which can only be overturned
on appeal if it is established that there is an error in the way the discretion has been exercised.
It is not sufficient to argue that a different result should have been reached in the exercise of
the discretion.
[6] The Commissioner’s conclusions on this question were expressed as follows:
“c. Conclusion as to fairly chosen?
[28] I am satisfied that the group chosen is geographically and operationally
distinct. I am satisfied that there is a degree of organisational integration and also a
degree of distinctness. It is common for a national and multi-national enterprise to
have a number of separate site specific agreements. It is also common for national and
multi-national enterprises to have agreements which cover more than one site.
Depending upon the circumstances the employees in either case can be fairly chosen.
Where there is a separate site specific agreement it will be common for there to be a
lack of organisational distinctness in respect to matters such as IT, planning, training
of salaried staff and OHS systems as occurs in this case. These matters are commonly
managed at an enterprise level. I am not satisfied that the degree of organisational
integration between the Wacol distribution centre and other distribution centres
renders the group chosen unfair.
[29] Cotton On argues that I should consider the interests of those employees who
have been excluded as a consequence of the group chosen by the NUW. I agree that
this is a relevant consideration. In the absence of any evidence about the interests of
those not chosen it is difficult to take this into account. If there was evidence that the
majority of employees at the Lara site wished to be included in the group bargaining
for the agreement then this might be relevant to a finding that the group was not fairly
chosen. If they did not then it might conversely be relevant to a finding that the group
was fairly chosen. However, there is no evidence one way or another and therefore
this consideration is a neutral factor.
[30] I am not satisfied that the employer’s argument that a different group would
be more fairly chosen is, in the circumstances of this case, sufficient reason to find that
the group is not fairly chosen. In this regard I have had regard to the approach taken
by the Full Bench in Cimeco and BP Refinery.
[31] After taking into account whether the group is geographically, operationally or
organisationally distinct and other relevant factors I am satisfied that the group has
been fairly chosen.”
[7] Cotton On contends that the Commissioner made absolute findings of geographical
and operational distinctness in circumstances where the warehouse employees at Wacol were
not geographically distinct from the other employees at Wacol and not operationally distinct
from the warehouse employees at Lara. It submits that these are fundamental errors and the
decision-making process is thereby flawed.
[8] Clearly the Commissioner did not mistake the facts. His decision makes it clear that
there were non-warehouse employees at Wacol and warehouse employees at Lara. The
[2014] FWCFB 8899
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controversy relates to how such a situation is described for the purposes of considering the
factors in s. 237(2)(c) of the Act. Rather than consider the question of distinctness in an
absolute sense, he considered that the concept was more a matter of degree and the warehouse
employees could be distinct from some other employees in some respects and distinct from
some other employees in others. He did not consider that the group needed to be unique
within the corporation in order to be distinct in a relevant sense. He considered the factual
position on these matters in the course of reaching a finding that the group of employees
subject to the determination was fairly chosen.
[9] In our view, Cotton On has failed to establish sufficient grounds to grant permission to
appeal in this matter. The Commissioner’s findings of fact were correct. He took into account
the relevant factors in determining whether the group was fairly chosen. He treated the notion
of distinction by reference to some other groups of employees, not all other groups of
employees. In our view, this approach was not erroneous. It enabled him to consider the
question of whether the group was fairly chosen on an informed and sound basis.
[10] For these reasons we declined permission to appeal. An order giving effect to our
decision is published as PR558793.
VICE PRESIDENT WATSON
Appearances:
Mr. M Follett of counsel, with Mr. I Dixon, for Cotton On Group Services Pty Ltd.
Ms. A Duffy of counsel, with Ms. I Beynon and Mr D. Mujkic, for National Union of
Workers.
Hearing details:
2014.
Melbourne.
27 November.
Final written submissions:
Cotton On Group Services Pty Ltd on 13 November 2014.
National Union of Workers on 21 November 2014.
THE OF THE FAIR WORK C. SEN THE NOISS
[2014] FWCFB 8899
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