Fair Work Act 2009
s.604—Appeal of decision

United Workers’ Union
v
Hot Wok Food Makers Pty Ltd
(C2022/3219)

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

Introduction and background history

[1] The United Workers’ Union (UWU) has, pursuant to s 604 of the Fair Work Act 2009 (FW Act), appealed the decision 1 of Deputy President Mansini2 on 28 July 2021 to approve, with undertakings, the Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 20213 (Hot Wok Agreement). Permission is required for the appeal. The appeal was lodged on 31 May 2022, approximately 10 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] In the proceedings before the Deputy President concerning the application for the approval of the Hot Wok Agreement, no party appeared to oppose the application. In those circumstances, the Deputy President only found it necessary to make very limited findings in the decision under appeal. However, in relation to the contested proceedings before us, it is necessary to make findings concerning the broader context of this matter in order to deal properly with the issues in contest, including whether an extension of time to lodge the appeal and permission to appeal should be granted. The basic features of that broader context are that:

(1) Hot Wok Food Makers Pty Ltd (Hot Wok), the employer covered by the Hot Wok Agreement the subject of this appeal, is an entity within Mantle Group Hospitality, a business which operates a range of well-known hospitality establishments in Brisbane and also operates a lesser number of establishments in Sydney.

(2) Mantle Group Hospitality has, over a long period of time, used the legislative mechanisms for enterprise bargaining in the FW Act and in the predecessor Workplace Relations Act 1996 (WR Act) to make agreements which remove or reduce the incidence of penalty rates which would otherwise be payable to its hospitality workers under the awards that cover its business.

(3) The Hot Wok Agreement is such an agreement.

[3] The facts which establish this context are derived from the following sources:

•  The material that was before the Deputy President, including the application for approval of the Hot Wok Agreement and the supporting statutory declaration made by Darren Latham, described in the declaration as “Chief HR Officer” (for which entity is not specified).

•  The decision of the Commission (Hunt C) in Application by Henry Thom 4 issued on 12 May 2022 (Thom decision), and material that was before the Commissioner in the matter5 to which that decision related.

•  The affidavit of Martin John De Rooy, an organiser employed by the UWU, affirmed on 21 June 2022, and the annexures thereto. We admitted this affidavit into evidence at the hearing of this appeal, without objection from Hot Wok, because it sought to explain the late filing of the appeal and identified circumstances relevant to the issue of permission to appeal. Hot Wok did not seek to cross-examine Mr De Rooy.

•  Previous decisions of this Commission concerning agreements applying to entities within Mantle Group Hospitality.

The Staff Services Agreement

[4] The background history to this matter commences on 26 November 1999, when a company named Staff Services Pty Ltd was registered. On 9 December 1999 — only two weeks later — this company made the Staff Services Pty Ltd Certified Agreement 2000 (Staff Services Agreement) with its employees under the then applicable provisions of the WR Act. The Staff Services Agreement was subsequently certified by the Australian Industrial Relations Commission under s 170LT of the WR Act on 14 January 2000 6 and took effect on that date. It had a nominal expiry date of 8 December 2002. The Staff Services Agreement contained classifications for Restaurant and Catering employees, and relevantly provided that if an employee was paid an “exemption” wage rate not less than 25% in excess of the highest adult base rate prescribed by the agreement, the employee was not entitled to overtime penalty rates, weekend penalty rates, meal breaks or notice of rosters.7 The highest adult base rate prescribed by the Staff Services Agreement was $13.31 per hour for a Level 4 employee operative from 9 December 2001, which meant that the exemption wage rate was $16.64 per hour from that date. The Staff Services Agreement also provided for base rates for each classification and “loaded” rates which were three percent higher than those base rates. Only permanent base rate employees were entitled to penalty rates under the agreement. Full-time and part-time employees on loaded rates had the right under the agreement to request an annual review to rectify any disadvantage compared to an employee on base rates, but casual employees on loaded rates did not have this right.

[5] Staff Services Pty Ltd was deregistered in 2005, but another entity, Staff Services Employment Pty Ltd (SSE), which was registered in 2004, became bound as the employer under the Staff Services Agreement by virtue of a transmission of business which occurred in 2005. On 20 March 2009, Godfrey Norman Mantle became the sole director and the secretary of SSE. Mr Mantle is also the sole shareholder in the company.

[6] The WR Act was extensively amended by the Workplace Relations Amendment (Work Choices) Act 2005, but the Staff Services Agreement continued to have operation as a “pre-reform certified agreement” under clause 2 of Schedule 7 of the amended WR Act. Clause 2A of Schedule 7 permitted the extension, on application, of the nominal expiry date of a pre-reform certified agreement if all the parties genuinely agreed (subject to certain other specified conditions). Upon the FW Act coming into effect, pre-reform certified agreements continued in existence as transitional instruments by virtue of item 2 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act), and item 13 of Schedule 3 of this Act continued clause 2A of Schedule 7 of the WR Act in effect provided that an application under that provision had to be made before 1 January 2010. On 24 December 2009, SSE made an application 8 to extend the nominal term of the Staff Services Agreement until 31 December 2012. The application was signed by Mr Mantle as director of SSE, and it was supported by a declaration made by Mr Mantle in which he averred that a ballot of employees had been conducted concerning the proposed extension and that 85 employees of 95 who had voted approved the extension. On 17 February 2010, the Commission9 (Richards SDP) granted SSE’s application and extended the nominal expiry date of the Staff Services Agreement to 31 December 2012.10

[7] As a result of an order made by the Commission (Asbury DP) on 24 April 2013 under s 319(1)(b) of the FW Act, 11 the Staff Services Agreement was made applicable to employees of Pig N Whistle Eagle Street Pty Ltd. The accompanying decision12 and an affidavit of Mr Mantle filed in the proceedings explain that the company wished to transfer the employment of persons working at Mantle Group Hospitality’s Pig N Whistle Eagle Street establishment from SSE to Pig N Whistle Eagle Street Pty Ltd, and desired that the Staff Services Agreement not only continue to apply to them but also apply to new employees subsequently engaged at that establishment because of the “importance”13 of that agreement to the business.

[8] On 24 December 2020, an employee of MGH Employment & Training Pty Ltd 14 (MGH), Alexander Knott, made an application to terminate the Staff Services Agreement.15 MGH is another company within Mantle Group Hospitality and was first registered on 5 February 2020. SSE appeared in the matter and contended that the application was not competent because Mr Knott’s employment had terminated before the date of filing. SSE did not appear to contest that MGH was an employer bound by the Staff Services Agreement, although it is unknown to us when or how that came about. The progress of the matter was initially deferred because Mr Knott had also made an application pursuant to s 365 of the FW Act in respect of his dismissal by MGH,16 and MGH had contended in that matter that the application had been lodged out of time. In a decision17 of the Commission (Young DP) issued on 4 May 2021 (Knott decision), this contention was rejected. Permission to appeal the Knott decision was refused on 3 August 2021.18 MGH applied for judicial review in the Federal Court, but this application was dismissed by order of the court on 1 February 2022.19 By this time, other events had overtaken Mr Knott’s application to terminate the Staff Services Agreement.

Application for approval of the Hot Wok Agreement

[9] Hot Wok was registered in 1992. It appears to have had some business connection with Mantle Group Hospitality from the outset due to having common directors and shareholders with other Mantle Group Hospitality entities, but its business function prior to 2021 is unknown to us. Mr Mantle became the sole director and secretary of Hot Wok on 12 May 2009 and is the sole shareholder.

[10] On 24 May 2021, Hot Wok made an application 20 for approval of an enterprise agreement entitled “Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021”. This agreement appears to have been in terms that are relevantly identical to the Hot Wok Agreement. The statutory declaration accompanying the application was made by Darren Latham, who describes himself as “Chief HR Officer” and who appears from other material before us to be the Chief HR Officer of Mantle Group Hospitality. Mr Latham’s declaration disclosed that the notice of employee representational rights for this agreement had been provided to employees on 17 March 2021 and that a vote to approve the agreement took place on 12 May 2021, with four out of a total of five employees who were covered by the agreement casting valid votes and voting in favour of approval. The agreement was signed by Shirley Li as representative of the employees, and Ms Li’s signature was witnessed by Suet Ying Wu.

[11] In accordance with the Commission’s usual process, the agreement was sent to the Commission’s Agreements Team to assess its compliance with the statutory approval requirements in the FW Act. A “checklist” analysis was produced by the team on 31 May 2021. The same day, the application was allocated for determination to Commissioner Simpson, and Hot Wok was advised of this that day. However, before any further action was taken by the Commission in respect of the application, Hot Wok without explanation filed a notice of discontinuance on 2 June 2021.

[12] On 8 July 2021, Hot Wok again applied to the Commission for approval of the Hot Wok Agreement pursuant to s 185 of the FW Act. 21 The Hot Wok Agreement itself was signed by Mr Latham on behalf of Hot Wok and Suet Ying Wu on behalf of the employees, with her signature being witnessed by Shanshan Li. We will set out the key provisions of relevance in the Hot Wok Agreement later in this decision. The application was signed by Mr Latham, and identifies that Hot Wok, as the employer covered by the Hot Wok Agreement, is in the restaurant and hospitality industry. The application was supported by a Form F17 statutory declaration made by Mr Latham on 8 July 2021. In his declaration, Mr Latham made statements to the following effect:

•  the Hot Wok Agreement would operate in every State and Territory in Australia;

•  the Staff Services Agreement currently applied to employees covered by the Hot Wok Agreement;

•  the Introductory and Levels 1-6 classifications in the Hot Wok Agreement corresponded to the Introductory and Levels 1-6 classifications in the Restaurant Industry Award 2020 (Restaurant Award) and in the Hospitality Industry (General) Award 2020 (Hospitality Award) respectively;

•  clause 4.2.3 (voluntary additional hours), clause 4.5(c) (voluntary ordinary hours of work on weekday evenings or weekends) and clause 5.8.6 (voluntary ordinary hours of work on public holidays) constituted entitlements that are not conferred by the Restaurant Award or the Hospitality Award;

•  the Hot Wok Agreement contained no terms or conditions of employment that are less beneficial than equivalent terms and conditions in the Restaurant Award or the Hospitality Award;

•  he thought that the Hot Wok Agreement passed the better off overall test (BOOT) but, if the Commission considered that it did not, Hot Wok would rely on the “exceptional circumstances” considerations in s 189 of the FW Act for approval of that agreement;

•  Hot Wok issued a notice of employee representational rights pursuant to s 173 of the FW Act on 2 June 2021 (noting that this was the same day on which it discontinued the earlier agreement approval application) which gave notice to employees that Hot Wok was “bargaining in relation to an enterprise agreement (Hot Wok Food Makers Pty Ltd Workplace Agreement 2021) which is proposed to cover employees that are engaged to undertake work within the classifications contained in the agreement and who perform work for Hot Wok Food Makers Pty Ltd”;

•  employees were provided with a copy of the proposed agreement on 10 June 2021;

•  on 14 June 2021, Hot Wok provided employees with a memo outlining when, where and how voting on the proposed agreement would occur;

•  Hot Wok conducted information sessions with employees about the proposed agreement on 18 and 23 June 2021, and met with employees again on 25 June 2021 just before the commencement of the vote; and

•  the vote occurred on 25 June 2021, at which time there were five employees covered by the proposed agreement, of whom four cast a valid vote and voted to approve the agreement.

[13] In his declaration, Mr Latham also identified the steps which had been taken to explain the Hot Wok Agreement to employees, and annexed a document which had been provided to the employees on 10 June 2021 entitled “Key Differences Between the Proposed Agreement and the Modern Awards” (Key Differences document). The document set out, in five columns: (1) “Terms and Conditions (T&Cs) More Favourable Than Awards”; (2) “T&Cs Less Beneficial Than Awards”; (3) “Entitlements Not in Awards”; (4) “Entitlements Omitted From Awards”; and (5) “T&Cs Different From Awards”. The first column set out the ordinary hourly rates of pay under the Restaurant Award and the Hospitality Award (which were the same) as at the date of the document, the ordinary hourly rates in clause 3.2 of the Hot Wok Agreement and the amount by which the agreement rates exceeded the award rates, and stated: “The agreement provides for ordinarily [sic] hourly rates of pay in excess of every classification level under the agreement.” In relation to apprentices, the document stated “With respect to apprentice rates of pay, the agreement delivers ordinary hourly rates of pay in excess of the ordinary hourly rates of pay in the awards.” Set out in tabular form below this statement were the hourly rates of pay for apprentices (over and under 21 years) under the awards and the agreement, and the amount by which the hourly rate was said to be in excess of the rates in the awards. The tables did not include any reference to the rates of pay for junior waiting apprentices in clause 19.2(b) of the Hospitality Award.

[14] The second column of the Key Differences document simply stated: “The Employer does not believe any T&Cs are less beneficial overall but please refer to the other columns for further information”. In the third column, explanations for clauses 4.2.3, 4.5(c) and 5.8.6 were set out. These referred in each case to the fact that where an employee voluntarily made a written application to work the relevant hours, no penalty rates would be payable under the agreement, but also stated in respect of each clause that it “does not provide any disadvantage to Employees given that the working of the… hours… may only take place at the Employee’s initiative and be done on a voluntary basis”. The overtime, evening, weekend and public holiday penalty rates in the Restaurant Award and the Hospitality Award were not set out in the Key Differences document.

[15] Mr Latham’s declaration also annexed a document dated 25 June 2021 and signed by four employees (Jack Nicholson, Suet Ying Wu, Ashmit Subedi and Shanshan Li) confirming that they had received the proposed Hot Wok Agreement and Key Differences document, understood the proposed agreement and had had the opportunity to ask questions about it. Mr Latham’s declaration does not explain why the fifth Hot Wok employee referred to therein who would be covered by the Hot Wok Agreement did not sign this document.

[16] Upon the receipt of the application for approval of the Hot Wok Agreement, it was (like the earlier agreement) assessed by the Commission’s Agreements Team for compliance with the statutory approval requirements in the FW Act, including the BOOT. The team produced its “checklist” analysis on 15 July 2021 (checklist) and sent it to the chambers of Deputy President Mansini, who had carriage of Hot Wok’s application. In respect of the BOOT, the checklist assessed the Hot Wok Agreement against the Restaurant Award and the Hospitality Award. The checklist identified that the ordinary adult rates of pay in the Hot Wok Agreement were approximately 5% above the rates in both awards, and that the junior rates were also above the award rates except for junior office employees under the Hospitality Award. The checklist also identified that the rates of pay for junior and adult waiting apprentices were 28.77% to 0.22% below the rates in the Hospitality Award. The checklist identified deficiencies in respect of conditions regulating the maximum number of ordinary hours, the exclusion of all award allowances including overtime meal allowances, and the lack of safeguards regarding taking rostered days off. It also identified that the penalty rate in the agreement for working on Christmas Day was lower than under the awards and that, unlike the awards, the agreement did not provide for a substitute day off where the employee was required to work on a Christmas Day that fell on a weekend and was not a public holiday. In respect of clauses 4.2.3, 4.5(c) and 5.8.6 of the Hot Wok Agreement, the checklist stated:

“Voluntary work: Clause 4.2.3, clause 4.5(c) and clause 5.8.6 provide that where an employee voluntarily makes an application in writing to the Employer to work overtime, shift work, on the weekend and on Public Holidays, and the Employer consents/agrees in writing, the employee will be paid only ordinary rates and not the applicable penalties. This poses BOOT concerns as it appears that employees would otherwise receive the relevant penalties under the Awards.”

[17] The overall conclusion of the checklist was that employees covered by the Restaurant Award and the Hospitality Award would not be better off overall under the Hot Wok Agreement.

[18] On 16 July 2021, the Deputy President’s chambers sent correspondence to the lawyers acting for Hot Wok in the matter requesting further information about the following matters:

(1) copies of emails and communications referred to in the Form F17 statutory declaration and further information about how they were given to employees, in order to assist the Commission in assessing compliance with pre-approval steps;

(2) the lack of any requirement in the Hot Wok Agreement for a maximum of eight days in a four-week cycle on which an employee can work more than 10 ordinary hours;

(3) the less favourable rate of pay for working on Christmas Day in the agreement and the lack of a substitute entitlement when Christmas Day falls on a weekend and is not a public holiday;

(4) the absence of allowances in the agreement; and

(5) clarification as to whether a waiting apprentice was intended to be covered by the agreement.

[19] The correspondence invited Hot Wok to provide further submissions, calculations or undertakings to address the above matters. The correspondence made no mention of the issue raised by the checklist concerning clauses 4.2.3, 4.5(c) and 5.8.6, nor did it identify that, in respect of waiting apprentices, the rates in the Hot Wok Agreement were below those in the Hospitality Award. The correspondence directed Hot Wok to give a copy of the application materials, the Commission’s correspondence and an invitation to share their views with the Commission to the employees covered by the agreement. It further directed Hot Wok to provide its response to the correspondence by 21 July 2021 and for employees to provide their views and any reply to the employer’s response by 23 July 2021.

[20] Hot Wok responded to the above correspondence on 21 July 2021, as directed. In relation to matter (1), the response stated that the relevant documents had been physically handed to staff by Mr Latham and that he was prepared to provide a statutory declaration to that effect. Hot Wok indicated that it would provide undertakings to address matters (2) and (3). In relation to matter (4), Hot Wok responded by stating that it would provide an undertaking in respect of the meal allowance and, in relation to the other award allowances, they were either inapplicable to its employees or more than offset by the higher base rates of pay in the agreement. As to matter (5), the response confirmed that “a waiting apprentice is covered by the proposed Agreement”. Hot Wok also provided, together with its response, a document signed by Mr Latham setting out the text of its proposed undertakings and a statement from Mr Latham dated 21 July 2021 confirming compliance with the first direction contained in the Commission’s correspondence. Mr Latham’s statement, and its attachment, disclose that in fact he emailed to “the Employees covered by the Prospective Agreement” a copy of the application materials and the Commission’s correspondence and invited these employees to express their views to the Commission. The actual email was sent by Mr Latham on 19 July 2021, and was addressed to Jack Nicholson, Carol Wu, Shirley Li and Ashmit Subedi. It is clear from all the materials before us that Carol Wu and Suet Ying Wu are the same person, as are Shirley Li and Shanshan Li. Mr Latham did not explain what had happened to the fifth employee.

[21] The Deputy President’s chambers did not receive anything from any of the employees. On 28 July 2021, Hot Wok provided amended undertakings, again signed by Mr Latham, which corrected a typographical error.

Decision to approve the Hot Wok Agreement

[22] The same day, the Deputy President issued her decision approving the Hot Wok Agreement. 22 The decision referred to the making of the application and then relevantly stated:

“[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and whether the Agreement passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). I am satisfied that the Undertakings will not cause financial detriment to any employee covered by the Agreement and that the Undertakings will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[4] As there were no bargaining representatives appointed to represent the employees to be covered by the Agreement the Commission took steps to ensure that the relevant employees were served with, and has received evidence that, the employees were informed of: the application; the Commission’s concerns; the Applicant’s responses to those concerns; and were invited to express their views (including about the Undertakings) and none opposed.

[5] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.”

Application by Hot Wok for orders under s 318 of the FW Act

[23] On 20 December 2021, Hot Wok applied 23 to the Commission for an order under s 318(1)(a) of the FW Act that the Staff Services Agreement will not cover employees of SSE whose employment transfer to Hot Wok, and an order under s 318(1)(b) that the Hot Wok Agreement will cover such transferring employees. In a statement made in support of the application dated 16 December 2021, Mr Latham said that Hot Wok currently employed five persons but intended in future to transfer employees from SSE to Hot Wok to perform substantially the same work. He also stated that Hot Wok understood that “the vast majority of employees who would be affected by the order will be in favour of it”, that no employee would be disadvantaged by the order in relation to their terms and conditions of employment, and that it was likely if the order was made that the transferring employees would be better off overall than under the Staff Services Agreement. Mr Latham did not say, nor was it subsequently disclosed in the proceeding, that employees transferring to Hot Wok might be required, expected or requested to sign “voluntary hours” agreements pursuant to clauses 4.2.3, 4.5(c) and 5.8.6 of the Hot Wok Agreement.

[24] This application was allocated to Commissioner Harper-Greenwell for determination. On 5 January 2022, the Commissioner published a statement in which she identified the subject matter of the application, stated that she had formed the provisional view on the basis of Hot Wok’s submissions and Mr Latham’s statement that the orders sought should be made, but sought the views of employees who would be affected by the orders (consistent with the requirement in s 318(3)(a)(ii) for the Commission to take into account the views of employees who would be affected by the order). The statement said that employees affected by the proposed order could express their views by emailing or calling the Commissioner’s chambers by 12 January 2022. In conjunction with the statement, the Commissioner issued directions requiring Hot Wok to serve a copy of her statement on any transferring employee and any potentially transferring employee covered by the Staff Services Agreement by 7 January 2022, and to provide a written detailing of the steps taken to make the statement available to those employees by 10 January 2022.

[25] In response to the second direction, on 10 January 2022, Hot Wok sent to the Commissioner’s chambers a copy of an email which Mr Latham had sent to employees on 6 January 2022. The email read as follows:

“Hello everyone,

We have made application to the Fair Work Commission (FWC) that the Staff Services Pty Ltd Certified Agreement 2000 will not cover transferring staff who were previously employed, or who are currently employed by SSE, and have been or may in the future be employed by Hot Wok. Instead, the Hot Wok Food Makers Pty Ltd Workplace Agreement 2021 will cover staff.

In considering whether to agree to this application, the FWC wishes to take into account the views of staff who would be affected by it.

The FWC has directed the business to provide you with the attached Statement.

You are invited to reply to the FWC with your views (if any) by no later than 4:00pm on Wednesday 12^th January 2022.

In the meantime, if you have any questions at all please do not hesitate to contact me.”

[26] The email attached a copy of the Commissioner’s statement. The email was addressed to a total of 10 employees. The 10 employees were:

Jack Nicholson

Shirley Li

Carol Wu

Ashmit Subedi

Brendan McFarlane

Mitesh Khristi

Antonio Kuo

Deniz Coskun

Angela Cervetto

Tamara Andersen

[27] The inclusion of Mr Nicholson, Ms Li, Ms Wu and Mr Subedi in the list of recipients of the email is curious, since in the period May-July 2021, these persons were purportedly employees of Hot Wok who had made, and subsequently become bound by, the Hot Wok Agreement. It is difficult to reconcile this with the proposition that, as at 6 January 2022, they were employees of SSE covered by the Staff Services Agreement who were likely at some future time to have their employment transfer to Hot Wok. The total number of employees in this list is also difficult to reconcile with a representation subsequently made by SSE to a different member of the Commission (to which we refer below) that, as at 14 April 2022, there were 143 employees of SSE covered by the Staff Services Agreement, and that a significant proportion of these had later transferred to employment with Hot Wok.

[28] By a decision 24 and order25 issued on 10 February 2022, the Commissioner granted Hot Wok’s application. In her decision, the Commissioner said that there was no response by any affected employees in opposition to Hot Wok’s application was received by the Commission26 and that she was satisfied that there would be no disadvantage to affected employees.27

Further applications for termination of the Staff Services Agreement

[29] On 30 December 2021, Alex Tian Hao Feng, who had been an employee of SSE in Sydney, lodged an application 28 for termination of the Staff Services Agreement. This was quickly met by an objection on the part of SSE that Mr Feng’s employment with SSE had terminated before he lodged his application and that the application was therefore not competent. This jurisdictional objection was heard by a member of the Commission on 31 March 2022, and the decision was reserved.

[30] Another application 29 for termination of the Staff Services Agreement was filed by lawyers acting for Henry Thom, an employee of SSE, on 10 March 2022.30 As mentioned above, this application was allocated to Commissioner Hunt and resulted in the Thom decision. Shortly after, on 15 March 2022, Mr Thom advised Mr De Rooy that employees at the restaurant at which Mr Thom worked (Jimmy’s on the Mall in Brisbane) were being offered “Casual Employment Agreements” (Casual Agreements). These Casual Agreements were between Hot Wok and individual employees. Mr De Rooy was subsequently provided with a copy of a Casual Agreement. It contains provisions to the following effect:

•  The employee is engaged pursuant to the terms of the Hot Wok Agreement as a casual employee.

•  The Casual Agreement is to be read in conjunction with the Hot Wok Agreement and “any documents mentioned therein, including, but not limited to any Application to Undertake/Request and any Consent/Agreements between the Employer and the Employee in relation to clauses 4.2.3, 4.5(c) or 5.8.6…”.

•  The employee’s role is as a Bartender, and is to be paid $28.77 per hour (inclusive of a casual loading of 25%).

•  If the employee provides an Application to Undertake/Request and the parties enter into any Consent/Agreements between them in relation to clauses 4.2.3, 4.5(c) or 5.8.6 of the Hot Wok Agreement, then the parties agree that the employee will be paid at the hourly rate of $28.77 for any such hours worked.

•  “The Employee acknowledges that the hourly rate has been calculated to reflect the Employer’s flexible working arrangements and the Employee acknowledges that the hourly rate compensates the employee for all payments including, for minimum rates of pay for ordinary hours, overtime, penalties, loadings (including casual loading), allowances and any other disabilities or entitlements (if applicable) associated with any and all hours of work the employee performs for the Employer and that may otherwise have been payable in accordance with the [Hot Wok Agreement] (including any Application to Undertake/Request and any Consent/Agreements between the Employer and the Employee in relation to clauses 4.2.3, 4.5(c) or 5.8.6 of the [Hot Wok Agreement] (if any) or any other industrial instrument or under the [FW Act].”

[31] Attached to the Casual Agreement (apparently as part of the whole document which employees were being asked to sign) was the following:

“Application to Undertake/Request

I, [name], being an employee of Hot Wok Food Makers Pty Ltd (my Employer) hereby make the following request:

1. I am employed under the Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021 which includes an undertaking (the Agreement).

2. My Employer has advised me that work in excess of the ordinary hours of work outlined in clause 4.1 of the Agreement (Additional Work) is available to me.

3. I hereby request to undertake voluntary additional hours in addition to my ordinary hours of work as set out in clause 4.1 of the Agreement. I understand that all time voluntarily worked by me in excess of my ordinary hours of work as per the Agreement shall be deemed voluntary additional hours.

4. Further, I hereby apply and request that the times at which and the days on which my ordinary hours of work can be undertaken will include between 7:00pm and 7:00am Monday to Friday and anytime on Saturdays and Sundays.

5. Further, I hereby apply and request that the days on which my ordinary hours of work can be undertaken will include all public holidays.

6. I understand that should my Employer consent/agree to this application, then

•  any time worked by me in excess of my ordinary hours of work; and

•  any hours worked by me between 7:00pm and 7:00am Monday to Friday and at any time on Saturdays and Sundays; and

•  any hours worked by me on public holidays;

shall be paid at my ordinary hourly rate in accordance with clause 3.2.1 of the Agreement.

7. I have not been required or directed by the Employer to agree to or to undertake voluntary additional hours or to agree to the other matters herein. I make these requests voluntarily.

Dated this _________ day of _________ 2022

Name: ______________

Signature: ______________”

[32] On 5 April 2022, Commissioner Hunt directed SSE to file certain information by 7 April 2022, including the following:

•  a table of the current wage rates being paid to employees covered by the Staff Services Agreement for all classifications; and

•  an outline of the penalty rates, if any, being paid to employees covered by the Staff Services Agreement for overtime, weekends, and public holidays.

[33] The information provided by SSE was that the adult rates of pay below were paid for all hours worked, and that no penalty rates were paid for overtime, weekends or public holidays:

[34] SSE paid junior employees (at 19 years, 18 years and 17 years or under) the applicable award percentages of the above amounts. The above rates were equal to the adult rates for the equivalent classifications in the Restaurant Award and the Hospitality Award at the time. This apparently represented compliance with item 13(1) of Schedule 9 to the Transitional Act, which requires that the base rate of pay for an employee to whom an agreement-based transitional instrument applies must be not less than the base rate of pay under a modern award that covers the employee. At the time this information was provided, the Restaurant Award and the Hospitality Award provided for the following rates of pay for overtime worked from Monday to Friday, 31 ordinary hours on weekends and work on public holidays for full-time and part-time employees in the equivalent classifications:

[35] The comparable position for casual employees under the Restaurant Award and the Hospitality Award at the relevant time was:

[36] On 8 April 2022, the Commissioner directed that SSE send an email to its employees by 14 April 2022 which attached the application and invited them to provide their views concerning the application to her chambers by 26 April 2022. SSE was also directed to advise the Commissioner’s chambers of the number of employees covered by the Staff Services Agreement by 20 April 2022. The Commissioner made directions for the filing of evidence and submissions and listed the matter for hearing on 13 May 2022.

[37] Three current or former employees of SSE sent emails to the Commissioner’s chambers supporting, for various reasons, the termination of the Staff Services Agreement. 33 One of these employees said that, once the news came out about a “complaint” to the Commission about the Staff Services Agreement, Mantle Group Hospitality had offered employees another agreement to sign with a different entity, namely Hot Wok, and that some employees had signed because it provided a pay rise. This employee provided, together with his email, a copy of the Casual Agreement and the attached “Application to Undertake/Request” with both documents having been prepared with the employee’s name typed in, and with Mr Latham having executed the agreement on behalf of Hot Wok. The employee said he had declined to sign the documents.

[38] On 20 April 2022, SSE advised that, as at 14 April 2022, there were 143 employees covered by the Staff Services Agreement. On 21 April 2022, an employee emailed the Commissioner’s chambers complaining that neither she nor any of the floor staff where she worked had received the email directed to be provided to them by the Commissioner. On the same day, the Commissioner’s associate sent an email to SSE advising of the receipt of the employee’s email and requesting a list of the 143 employees covered by the Staff Services Agreement. On 28 April 2022, SSE sent the Commissioner’s chambers a list of employees who, as at 27 April 2022, were employed by SSE. This list contained 95 names. On 29 April 2022, the Commissioner’s chambers sent an email to SSE querying this discrepancy and, on 3 May 2022, SSE responded as follows:

“In response to the Commissioner’s queries, we are now instructed by our client as per the below.

Staff Services Employment Pty Ltd (‘SSE’) is an entity forming part of Mantle Group Hospitality (‘MGH’). MGH owns and operates a number of venues across Queensland and New South Wales (‘MGH venues’). 

SSE employs workers who work at MGH venues. There are other workers who work at MGH venues who are not employed by SSE, but by other entities which form part of MGH.

As the Commissioner has noted, the number of employees who are covered by the Staff Services Pty Ltd Certified Agreement 2000 (‘the certified agreement’) has reduced since the provision of information on 14 April 2022.

The reduction in the list of employees provided on 27 April 2022 compared with the information provided to the Commission on 14 April 2022 is due to the following:

(a) the number of employees outlined on 14 April 2022 erroneously included 10 employees of SSE who are not covered by the certified agreement. These 10 employees are corporate, finance and marketing employees of SSE who are not covered by the certified agreement; 

(b) the employment of some employees had been transferred to Hot Wok Food Makers Pty Ltd, another entity forming part of MGH, such that they and are no longer covered by the certified agreement; and

(c) some employees have ended their employment with SSE and have not become employed by any other entity forming part of MGH.

Our client has also noted that the list of employees covered by the certified agreement continues to reduce given further employees have had their employment transferred to Hot Wok Food Makers Pty Ltd.”

[39] On 4 May 2022, SSE advised the Commission that it had reconsidered its position in respect of Mr Thom’s application and now no longer opposed it, but requested that the termination of the Staff Services Agreement not come into operation for a period of four weeks from the date of decision. Mr Thom did not oppose this course.

[40] On 9 May 2022, the Commissioner advised the parties by email that, having been provided with a copy of the Casual Agreement and the attached “Application to Undertake/Request” (which were attached to the email), she proposed to say something about it in her decision on the basis that it was “troubling” her, and invited the parties to express their views about it. Both parties provided submissions, with SSE submitting on 11 May 2022 that the Commissioner ought not do so because it was irrelevant to the termination of the Staff Services Agreement and would be unfair to Hot Wok, which was not a party to the matter.

[41] The Commissioner issued her decision in the matter on 12 May 2022. 34 For the purpose of s 226 of the FW Act,35 the Commissioner found that the termination of the Staff Services Agreement was not contrary to the public interest and was appropriate having regard to all the circumstances including the views of the employer and employees. In finding that termination was appropriate, the Commissioner said:

“[32] For more than two decades, the Employer has had the benefit to it, and to it only in depriving employees of payment of penalty rates for work performed at night, on weekends and on public holidays. My observation of the Agreement is that it provided no benefit to the employees at all.

[33] The effect of employees working without the payment of penalty rates is staggering. Sunday rates for a casual Level 1 employee covered by the Agreement amount to a loss to the employee of more than $11 per hour, when compared with the Award. On public holidays, the loss to a casual Level 1 employee is in excess of $26 per hour.

[34] It is difficult to understand how an employer could have, for so many years, knowingly deprived a large number of employees of penalty rates, to which they would have otherwise been entitled under the relevant award, simply because it lawfully could do so. …”

[42] The Commissioner ordered the termination of the Staff Services Agreement effective from 9 June 2022. The Commissioner also made a number of critical obiter comments about the Hot Wok Agreement, the Casual Agreements and the attached “Application to Undertake/Request”.

[43] As earlier stated, the UWU lodged its appeal in this matter on 31 May 2022.

Relevant provisions of the Hot Wok Agreement

[44] The provisions of the Hot Wok Agreement relevant to this appeal are as follows. Clause 1.3.2 provides that the agreement has a nominal expiry date of four years from the date of the approval of the agreement by the Commission. Because, as a result of the Deputy President’s decision, the Hot Wok Agreement was approved on 28 July 2021, the effect of clause 1.3.2 is that its nominal expiry date is 28 July 2025. Under s 54 of the FW Act, the Hot Wok Agreement will remain in operation beyond 28 July 2025 unless it is terminated by the Commission under s 223 or s 226 or it ceases to apply to any employee under s 58 because it has been wholly replaced by another enterprise agreement.

[45] Clause 1.4 provides:

1.4. AGREEMENT COVERAGE

This Agreement will apply to the Employer and all Employees classified under this Agreement performing work in the Commonwealth of Australia. It is the intention of the parties to this Agreement that it will exclude and replace all terms and conditions of the Restaurant Industry Award 2020 and the Hospitality Industry (General) Award 2020, any Industrial Agreements or any Industrial Instruments or any variations thereto unless otherwise stated herein.

[46] The effect of clause 1.4 is that the Hot Wok Agreement applies to any employee of Hot Wok working anywhere in Australia who falls within the classifications provided for in the agreement, and that the agreement wholly displaces the provisions of the Restaurant Award and the Hospitality Award. The classifications (“Work Levels”) in the Hot Wok Agreement are set out in clause 3.1. There are seven levels in total: an Introductory Level, and Levels 1-6. The Introductory Level covers an employee engaged with no previous experience for an initial period of three months, extendable by a further three months if the employee does not meet the standards for promotion to a higher level. The remaining levels include the following job functions:

Level 1: Food and Beverage Attendant grade 1

Kitchen Attendant grade 1

Level 2: Food and Beverage Attendant grade 2

Cook grade 1

Kitchen Attendant grade 2

Clerical grade 1

Storeperson grade 1

Level 3: Food and Beverage Attendant grade 3

Cook grade 2

Kitchen Attendant grade 3

Clerical grade 2

Storeperson grade 2

Level 4: Food and Beverage Attendant grade 4 (tradesperson)

Cook grade 3 (tradesperson)

Clerical grade 3

Storeperson grade 3

Level 5: Food and Beverage supervisor

Cook grade 4 (tradesperson)

Clerical supervisor

Level 6: Cook grade 5 (tradesperson)

[47] The above classification structure largely reproduces the aligned seven-level classification structures found in the Restaurant Award and the Hospitality Award except that it excludes job functions relating to security, maintenance and accommodation services. It may be noted that the Hospitality Award has, above the seven-level structure, a separate classification for hotel managers who are not senior managers. 36

[48] The ordinary time hourly rates for adult and junior employees for which the Hot Wok Agreement provides are set out in clause 3.2.1. As the table below demonstrates, the rates are slightly higher than the rates for the equivalent classifications in the Restaurant Award and the Hospitality Award as they were at the time the application for approval of the agreement was filed, but they are now lower than the award rates because the Hot Wok Agreement does not make any provision for wage increases while it remains in operation:

Adult full-time/part-time rates

Adult casual rates

[49] Because the Hot Wok Agreement base rates have fallen below the minimum award rates covering Hot Wok’s employees, Hot Wok is obliged by s 206 of the FW Act to pay the minimum award rates if the agreement remains in operation.

[50] Clause 4.2 of the Hot Wok Agreement deals with overtime. Clause 4.2.1 provides that the employer “may direct and require” an employee to work reasonable overtime at overtime rates. Clause 4.2.2 provides that:

•  overtime worked from Monday to Friday will be paid at 50% additional for the first two hours and 100% additional for each hour thereafter;

•  overtime worked between midnight Friday and midnight Sunday (that is, weekend overtime) will be paid at 100% additional for each hour; and

•  overtime worked on a rostered day off will be paid at 100% additional for all time worked, with a minimum payment of four hours even if less than four hours are worked.

[51] The overtime rates provided for in clause 4.2.2 are the same as those provided for in the Restaurant Award and the Hospitality Award. However, clause 4.2.3 then provides:

4.2.3. Approval of Overtime

An Employee will only work overtime as per clause 4.2.1 and 4.2.2 if it has been directed and required by the Employer. Notwithstanding this and clauses 4.2.1 and 4.2.2, voluntary additional hours may be undertaken by an Employee where the Employer states that additional work is available to the Employee. An Employee must make written application to undertake voluntary additional hours. Voluntary additional hours shall only be worked by the Employee with the written consent/agreement of the Employer. No Employee can be required or directed to undertake voluntary additional hours under this clause. All voluntarily additional hours worked by an Employee in excess of their ordinary hours of work, shall be deemed voluntary additional hours. All voluntary additional hours worked by an Employee shall be paid at the Employee’s ordinary hourly rate of pay as set out in clause 3.2.1. No additional or extra payments including for overtime penalty rates under this Agreement will be made for voluntary additional hours worked by an Employee. The written application to undertake voluntary additional hours shall remain in force until varied or ceased in writing by the Employee.

[52] For an employee under the Hot Wok Agreement who has entered into a “voluntary hours” agreement under clause 4.2.3, their overtime rates compared to someone at the same classification level under the Restaurant Award and the Hospitality Award are as follows:

Adult full-time/part-time rates

Adult casual rates

[53] Clause 4.5 of the Hot Wok Agreement deals with penalty rates. Clause 4.5(a) provides that a full-time or part-time employee who is “directed and required” by the employer to work ordinary hours on:

•  Saturday will be paid an additional 25% loading for each hour worked;

•  Sunday will be paid an additional 50% loading for each hour worked;

•  Monday to Friday between 7.00 pm and midnight will be paid an additional $2.31 for each hour worked; and

•  Monday to Friday between midnight and 7.00 am will be paid an additional $3.46 for each hour worked.

[54] Clause 4.5(b) provides that a casual employee who is “directed and required” to work ordinary hours on:

•  Saturday will be paid the permanent ordinary rate plus an additional 50% loading for each hour worked;

•  Sunday will be paid the permanent ordinary rate plus an additional 75% loading for each hour worked;

•  Monday to Friday between 7.00 pm and midnight will be paid an additional $2.31 for each hour worked; and

•  Monday to Friday between midnight and 7.00 am will be paid an additional $3.46 for each hour worked.

[55] The penalty rates for Saturday work above are the same as in the Restaurant Award and the Hospitality Award. The penalty rates for Sunday work are the same as provided for in the Restaurant Award and the Hospitality Award except that, for casual employees under the Restaurant Award at the Introductory Level and Levels 1-2, the penalty rate is an additional 50% (not 75%). The penalty rates for Monday-to-Friday evening and early morning work were the same as those in the Hospitality Award at the time the application for approval of the Hot Wok Agreement was filed but are now lower than the Hospitality Award rates. The Restaurant Award contains Monday-to-Friday evening and early morning penalty rates which are the same amount as in the Hospitality Award, but the evening penalty rate is only applicable from 10.00 pm to midnight and the early morning penalty rate from midnight to 6.00 am.

[56] Clause 4.5(c) provides:

c) Notwithstanding the above at a) and b), where an Employee voluntarily makes an application in writing to the Employer and the Employer consents/agrees in writing, the times at which and the days on which ordinary hours are worked may include between 7pm and 7am Monday to Friday, anytime on Saturdays and/or anytime on Sundays. If an Employee voluntarily makes the written application to work ordinary hours between 7pm and 7am Monday to Friday and/or at any time on Saturdays and/or at any time on Sundays and the Employer consents/agrees in writing, then the Employee will be paid for such hours worked at the Employee’s ordinary hourly rates of pay as set out in clause 3.2.1. No additional or extra payments including for penalty rates as above under this Agreement will be made for such hours worked. The written application shall remain in force until varied or ceased in writing by the Employee.

[57] For an employee under the Hot Wok Agreement who has entered into a “voluntary hours” agreement under clause 4.5(c), their Saturday and Sunday rates for ordinary hours compared to someone at the same classification level under the Restaurant Award and the Hospitality Award are as follows:

Adult full-time/part-time rates

Adult casual rates

[58] Clause 5.8 of the Hot Wok Agreement deals with public holidays. Clause 5.8.1 provides that the employer can “reasonably direct and require” an employee to work on a public holiday, in which case a full-time or part-time employee is to be paid a penalty rate of 225% on the ordinary hourly rate of pay and a casual employee is to be paid a penalty rate of 250%. However, clause 5.8.6 then provides:

5.8.6. Notwithstanding the above clause 5.8.1, where an Employee voluntarily makes an application in writing to the Employer and the Employer consents/agrees in writing, the days on which ordinary hours are worked may include public holidays. If an Employee voluntarily makes a written application to work ordinary hours on public holidays and the Employer consents/agrees in writing, then the Employee will be paid for such hours worked at the ordinary time rates of pay provided for in clause 3.2.1. No additional or extra payments including for penalty rates at clause 5.8.1 under the Agreement will be made for such hours worked. The written application shall remain in force until varied or ceased in writing by the Employee.

[59] For an employee under the Hot Wok Agreement who has entered into a “voluntary hours” agreement under clause 5.8.6, their public holiday rates compared to someone at the same classification level under the Restaurant Award and the Hospitality Award are as follows:

Adult full-time/part-time rates

Adult casual rates

Appeal grounds and submissions

UWU’s grounds of appeal

[60] The UWU’s notice of appeal, as filed, contained in substance four appeal grounds (albeit they are designated as 3(a), (b), (c) and (d) in the notice of appeal) by which it contended that the Deputy President erred in her decision to approve the Hot Wok Agreement:

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

Particulars

The effect of clauses [4.2.3] [4.5(c)] and [5.8.6] of the Agreement (the relevant clauses) is that employees can purport to volunteer not to receive penalty rates for working public holidays; between 7:00 pm and 7:00 am Monday to Friday; any hours on Saturday and Sunday; or for working overtime. Those clauses mean that the Agreement could not pass the BOOT.

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

Particulars

The Commission erred in law and on the evidence before it in finding that an Agreement approved by four employees which was then, and continues to be, used to cover a larger workforce, was an agreement genuinely agreed by Relevant Employees covered by the Agreement.

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

Particulars

The Commission erred in failing to consider relevant matters in exercising it[s] statutory duty, including:

(i) Given the nature of the Respondent’s business, the Agreement if approved, would cover not just employees who voted for it, but all casual and permanent employees who worked for the Respondent’s wider workforce, during its terms.

(ii) The circumstances were such that it was unfair for the Respondent to enter into the Agreement with employees who were not likely to be representative of the industries or businesses to which the Agreement could apply.

(iii) The Commission failed to make findings as to whether the group of employees was geographically, operationally or organisational distinct such that they could be said to be fairly chosen.

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

Particulars

(i) The Undertakings could not remedy the failure to comply with the requirements of the FW Act.

(ii) The Commission was not able to be satisfied that the Undertakings remedies these concerns, pursuant to s 190(2) of the FW Act.

[61] We shall refer to the appeal grounds as they are numbered above.

UWU submissions

[62] The UWU’s submissions addressed three issues: (1) whether an extension of time should be granted to file its appeal; (2) whether permission to appeal should be granted; and (3) whether the appeal should be upheld on the grounds stated in the notice of appeal.

[63] In relation to the issue of an extension of time, the UWU submitted that the primary reason for its delay in filing the appeal was that it was not a party to the Hot Wok Agreement or the proceedings for approval of that agreement and did not become aware of the existence of the agreement until 15 March 2022 when Mr De Rooy was informed about it. The UWU submitted that Mr De Rooy did not form the view that the Hot Wok Agreement provided terms below the Hospitality Award until he reviewed SSE’s submissions of 11 May 2022, and the appeal was filed within 21 days after this date. While the UWU accepted that the extent of the delay in filing the appeal – some 307 days – weighed against the grant of an extension, the determining factor in favour of an extension, it submitted, was the likelihood that one or more of the grounds of appeal would be upheld. The UWU submitted that any prejudice caused to Hot Wok by the grant of an extension had to be balanced with both the public utility of ensuring that agreements that disadvantage workers do not continue to operate, as well as the need to ensure the integrity of the Commission’s processes for the approval of enterprise agreements.

[64] In relation to permission to appeal, the UWU contended that permission should be granted because:

•  it was in the public interest to ensure that that a workforce is not worse off under an enterprise agreement than under the relevant award and that the award continues to provide the guaranteed safety net of fair relevant and enforceable minimum terms and conditions consistent with the objects of the FW Act;

•  the statutory preconditions under the FW Act for the approval of the Hot Wok Agreement were not satisfied;

•  the employees to be covered by the Hot Wok Agreement were not informed about the agreement and or given the opportunity to vote upon it; and

•  the satisfaction of the statutory preconditions for the approval of an enterprise agreement is essential to the integrity of the bargaining and enterprise agreement processes in the FW Act and ensures consistency in decision-making, where the Commission has consistently found that an enterprise agreement that results in employees being worse off than under the relevant award should not be approved.

[65] In relation to the first appeal ground, the UWU submitted that the Deputy President failed to undertake the global analysis of the terms of the Hot Wok Agreement required by the BOOT and, had she done so, it would have been plain the agreement did not pass. Clauses 4.2.3, 4.5(c) and 5.8.6 of the Hot Wok Agreement permitted work to be done at ordinary rates which, under the Hospitality Award and the Restaurant Award, would be paid at penalty rates and this, it was submitted, constituted a major detriment in the agreement compared to the awards which, it was submitted, the Deputy President did not take into account or recognise. In addition, there were a range of other less beneficial aspects of the Hot Wok Agreement, including the lack of any provision for allowances or for breaks after working overtime and a less-favourable higher duties provision. The higher base rates of pay in the Hot Wok Agreement did not ameliorate these disadvantages.

[66] In relation to its second appeal ground, the UWU submitted that the scope of the Hot Wok Agreement, which covered 20 different positions across six work levels in the restaurant and hospitality sector Australia-wide, far exceeded the four employees who agreed to it. In those circumstances, it was submitted, the Hot Wok Agreement could not be said to have been genuinely agreed since the employees would presumably act out of self-interest and would have no interest in and be indifferent to the broader range of classifications covered by the agreement. The Deputy President erred in being satisfied of the requirement in s 186(2)(a) of the FW Act because the Hot Wok Agreement was not susceptible of approval.

[67] As to the third appeal ground, the UWU submitted for the same reasons as advanced in respect of the second ground that the Deputy President erred in reaching the necessary state of satisfaction required by s 186(3) of the FW Act. Further, it was submitted, the Deputy President erred by failing to make findings for the purpose of s 186(3A) as to whether the group of employees covered by the agreement was geographically, operationally or organisationally distinct such that they could be said to be fairly chosen.

[68] As to the fourth ground, the UWU submitted that the undertakings accepted by the Deputy President could not have caused her to be satisfied that the identified failings to comply with the requirements of the FW Act could be remedied within the meaning of s 190(2).

Hot Wok’s submissions

[69] Hot Wok submitted, firstly, that the UWU should not be granted an extension of time to file its appeal because:

(1) The UWU had not given a satisfactory explanation for the delay, in that the evidence of Mr De Rooy did not disclose whether anyone else within the UWU was aware of the Hot Wok Agreement before 15 March 2022, what steps (if any) Mr De Rooy had taken to review the agreement on becoming aware of it, why he did not take any such steps before 11 May 2022, and what processes the UWU had in place to monitor the approval of agreements by the Commission. This is particularly because, during the time of the events, Mr De Rooy and the UWU were involved in the litigation concerning the termination of the Staff Services Agreement, in which the issue of voluntary hours agreements had been raised, but Mr De Rooy had given no explanation as to why this had not immediately prompted him to review the Hot Wok Agreement.

(2) The grant of an extension of 286 days would cause prejudice to Hot Wok if the appeal were to succeed. Hot Wok has been conducting its operations for more than nine months on the understanding that the agreement would not be challenged, and the effect of the appeal may be that Hot Wok will have to review what it has paid its employees and possibly provide backpay if it has provided employees with entitlements that are not in accordance with the underpinning awards. In addition, there is a broader public interest concern in avoiding uncertainty for an employer and its employees following the approval of enterprise agreements.

(3) The appeal has low prospects of success, for the reasons stated in respect of the appeal grounds.

[70] Hot Wok also submitted that permission to appeal should not be granted because the appeal concerns an evaluative process conducted by the Commission and raises no general issue of importance, and because of the issues associated with the lateness of the appeal and the prejudice to Hot Wok described above.

[71] In relation to the appeal generally, Hot Wok submitted that because the relevant approval requirements in s 186 of the FW Act were dependent upon the satisfaction of the primary member as to the prescribed matters, the appeal cannot succeed simply because the Full Bench forms a different view about these matters; it is rather necessary for an appellant to show that the primary member did not have regard to a relevant consideration or had regard to an irrelevant consideration or that the decision under appeal was unreasonable or plainly unjust. It submitted that the UWU had not established any such ground.

[72] In relation to the first appeal ground concerning the BOOT, Hot Wok submitted that this ground was simply an assertion, or complaint, that the Deputy President should not have come to the decision that she did in determining that the Hot Wok Agreement passed the BOOT, and further submitted that:

•  the UWU had not engaged in any BOOT analysis of the Hot Wok Agreement taken as a whole, but rather it simply took individual clauses which it says are less beneficial than the relevant awards and asserts that as a result the agreement must have failed the BOOT;

•  the UWU relies upon obiter remarks in the Thom decision which were not based on any analysis of the Hot Wok Agreement as a whole;

•  the Deputy President did have the benefit of an analysis of the agreement as a whole, requested further information from Hot Wok to clarify further issues, accepted undertakings from Hot Wok to deals with her identified concerns, and took steps to ensure that employees who would be covered by the agreement were aware of the Commission’s concerns and Hot Wok’s response to those concerns.

[73] Hot Wok submitted that the fact that an enterprise agreement contains “loaded rates” does not of itself mean that the agreement must fail the BOOT and, similarly, the fact that an agreement contains “voluntary hours” provisions does not of itself preclude such an agreement being approved by the Commission provided that a global assessment of the agreement’s terms and conditions concludes that the BOOT has been satisfied. In short, it submitted, the Deputy President undertook the steps she was obliged to take under the FW Act.

[74] Hot Wok characterised the second appeal ground as being an objection that the Commission could not be satisfied as to genuine agreement because the scope of the agreement (that is, its classifications) go beyond those in which the employees who voted on the agreement were employed. It submitted that the case authorities made clear that there is no difficulty in a small number of employees voting in favour of an enterprise agreement which has the potential to cover many employees. The focus, it submitted, was on whether the voting employees have a basis for appreciating the nature and terms of the agreement. In this case, the Hot Wok Agreement had only two underpinning awards which were homogenous in nature, the agreement was not a lengthy or complicated document and had a limited number of classifications which were themselves homogeneous in nature, and the explanatory document provided by Hot Wok to the relevant employees explained the terms of the agreement by comparison to the underpinning awards and was supplemented by meetings with the employees. In those circumstances, it was submitted, it was entirely reasonable for the Deputy President to be satisfied that the employees could, and did, understand the Hot Wok Agreement, and genuinely agree to it.

[75] In respect of the third appeal ground, Hot Wok submitted that the Hot Wok Agreement covered all of its employees and it was not clear, and the UWU had not identified, who else the agreement could or should have covered. The fact the decision under appeal does not specifically refer to this issue does not constitute error, particularly when the decision explicitly stated that each of the requirements of s 186 had been met. As to the fourth appeal ground, Hot Wok did not deal with this separately beyond submitting that it stood or fell with the first appeal ground.

Developments since the hearing of the appeal

[76] After the hearing of this appeal on 21 July 2022 (appeal hearing), we reserved our decision subject to the receipt of a further written submission from Hot Wok in response to BOOT modelling which we provided during the hearing. That submission was filed on 27 July 2022 (and is discussed below). In our subsequent research for this decision concerning the historical background to this matter, we discovered certain matters of significant relevance to the basis upon which Mr Latham’s declaration said the Hot Wok Agreement had been made. These matters are of relevance in the present appeal given: the information provided by Hot Wok to Deputy President Mansini about the employees who had agreed to the Hot Work Agreement; the submissions of the UWU in relation to whether the small number of employees who made the Hot Wok Agreement genuinely agreed to its terms or were fairly chosen; and the submissions of Hot Wok in response. The materials that were before the Deputy President indicated that two of the four employees who voted to approve, and therefore purportedly “made”, the Hot Wok Agreement were Suet Ying (Carol) Wu and Shanshan (Shirley) Li. It may be noted that Ms Wu signed the Hot Wok Agreement on behalf of the employees of Hot Wok and Ms Li witnessed her signature.

[77] The first matter we discovered concerned Ms Wu. We have earlier (at paragraph [8]) referred to the proceedings brought by Mr Knott against MGH pursuant to s 365 of the FW Act. Mr Knott was employed at the Milano restaurant in Brisbane, a venue operated by Mantle Group Hospitality. In the Knott decision issued by Young DP on 4 May 2021, 37 Ms Wu was described as the “Venue Manager at Milano”,38 and evidence was referred to in which Mr Latham inferred in an email that Ms Wu was part of “the management team”.39 The Deputy President ultimately rejected a contention advanced by MGH that Ms Wu dismissed Mr Knott from his employment on 23 October 202040 and found he was dismissed by an email of Mr Latham of 24 December 202041 (with the consequence that Mr Knott’s application was made within the prescribed time).

[78] MGH appealed the Deputy President’s decision. In the Full Bench decision issued on 3 August 2021 which dismissed the appeal, 42 Ms Wu was again described as the “venue manager at Milano”.43 In addition, the Full Bench dealt with an application by MGH to admit a witness statement made by Ms Wu. This witness statement was made by Ms Wu on 16 June 2021, virtually contemporaneously with the purported making of the Hot Wok Agreement. In this statement as filed, Ms Wu stated:

“I am the Venue Manager at a venue named Milano in Brisbane.

The Milano restaurant is a very busy restaurant located in the Brisbane Queen Street Mall. I am responsible for managing the day-to-day operations of the Venue and am responsible for the supervision and management of a staff pool of approximately 12.

Part of my function as Venue Manager is to recruit, manage and, if necessary, discipline employees under my supervision.

Part of my duties also included managing the day-to-day rostering of staff. My staff mainly comprise casual employees.

I have authority to terminate any venue staff member. The only other person with such authority is the Director of the Respondent. I did not involve the Director in any decisions in relation to the Applicant’s employment…”

[79] The Full Bench ultimately decided not to admit the statement into evidence in the appeal. 44

[80] The second matter concerned Ms Li and arose out of the same proceedings between Mr Knott and MGH. After Young DP issued her decision at first instance as to whether Mr Knott’s application was filed within time, she proceeded to deal with the application pursuant to s 368 of the FW Act by arranging a conference of the parties for the purpose of endeavouring to resolve the dispute. An issue arose about MGH’s representation at this conference. The Commission’s file for the matter discloses that, on 11 May 2021, Mr Latham advised the Commission by email that MGH’s “authorised representative at the conciliation conference on Thursday 13 May 2021 is Shirley Li…”. The same day, Mr Knott objected, stating in an email that:

“Shirley Li is the Payroll Manager and International Business Relations Manager of Mantle Group. I have not had any interactions with Ms Li over the course of this matter. I am concerned that Shirley Li may not have the background knowledge (of C2021/17) and authority to make decisions concerning the entire outcome of this dispute. I would be happy to postpone this hearing if that should facilitate a more productive conciliation.”

[81] Mr Latham responded by email the same day as follows:

“I confirm that Shirley Li works with me as the HR Co-ordinator, among other roles in the business. She does have knowledge of the matter and she has the authority to settle the matter on Thursday.

We have agreed to participate in good faith in this further conference, and we look forward to that opportunity on Thursday. We trust that Mr Knott also attends the conference prepared to settle the matter.”

[82] Again, these events were very close in time to the purported making of the Hot Wok Agreement.

[83] In neither case above was Ms Wu’s or Ms Li’s employer identified as being Hot Wok, as distinct from MGH, SSE or some other Mantle Group Hospitality entity. As earlier noted, in his declaration of 8 July 2021 made in support of the approval of the Hot Wok Agreement, Mr Latham stated that the Staff Services Agreement currently applied to employees covered by the Hot Wok Agreement. Taken at face value, unless the Staff Services Agreement somehow became binding upon employees of Hot Wok (a proposition not supported by any of the material before us), Mr Latham’s statement suggests that the employees said to be covered by the Hot Wok Agreement were not actually employed by Hot Wok at the time it was purportedly made.

[84] These are matters of significant concern. It is fundamental to the scheme of enterprise agreement-making established by Pt 2-4 of the FW Act that a single-enterprise non-greenfields agreement (as the Hot Wok Agreement purports to be) is “made” when the employees of the employer that will be covered by the proposed agreement have been asked to approve the agreement under s 181(1), and a majority of those employees who cast a valid vote have approved the agreement: s 182(1). A single-enterprise agreement will not satisfy the “genuinely agreed” approval requirement in s 186(2)(a) if the agreement has not been made in accordance with s 182(1): s 188(1)(b). The matters identified above cast doubt as to whether the persons who voted to approve the Hot Wok Agreement were entitled to be requested to vote under s 181(1), for two reasons:

(1) At or around the time the Hot Wok Agreement was made, Ms Wu and Ms Li have been characterised as management personnel — in Ms Wu’s case, as the manager of the Milano restaurant venue with the authority to hire and fire employees and, in Ms Li’s case, as a HR Co-ordinator working with Mr Latham with authority to negotiate and settle litigation on behalf of Mantle Group Hospitality. This raises a real question as to whether any of the classifications in the Hot Wok Agreement could apply to them such as to bring them within the coverage of the agreement. If they were not covered, they were not entitled to vote upon the agreement.

(2) If the four employees who voted on the agreement were not actually employees of the Hot Wok company at the time (as distinct from employees of some other Mantle Group Hospitality entity), they were likewise not entitled to vote on the agreement.

[85] Given that Mr Latham averred in his declaration of 8 July 2021 that the Hot Wok Agreement covered all of the employees of Hot Wok and that, at the time of the vote on the agreement there were five employees covered by the agreement of which four voted, the above matters call into question the veracity of that declaration. This is a matter of real importance, since the Commission necessarily relies upon the veracity of Form F17 declarations in order to carry out its statutory function of determining applications for approval of enterprise agreements.

[86] Additionally, if the persons who purportedly made the Hot Wok Agreement were in part if not wholly management personnel, this might also raise a question in respect of that part of the genuine agreement requirement in s 188(1)(c) as to whether their “agreement” as to rates of pay and conditions of employment to apply to hospitality workers was genuine in the sense of being authentic and having moral authority. 45 There might also be a question as to whether, if the Hot Wok Agreement’s coverage was capable of encompassing management personnel, it was fairly chosen for the purpose of the approval requirement in s 186(3).

[87] The matters identified above clearly relate to grounds 2 and 3 of the UWU’s grounds of appeal. Although they do not strictly arise from the way in which those grounds were particularised in the notice of appeal as filed or from the UWU’s written and oral submissions, the following provisions of the FW Act apply for relevant purposes to the exercise of the Commission’s statutory functions:

•  the Commission must perform its functions and exercise its powers in a manner that is, among other things, quick, informal and avoids unnecessary technicalities (s 577(b));

•  the Commission may, subject to the FW Act, inform itself in relation to any matter before it in such manner as it considers appropriate (s 590(1));

•  the Commission may inform itself by, among other things, conducting inquiries and undertaking research (s 590(2)((f) and (g));

•  the Commission is not bound by the rules of evidence and procedure in relation to a matter before it (s 591);

•  subject to the FW Act, the Commission is not required to make a decision in relation to an application in the terms applied for (s 599); and

•  in an appeal, the Commission may admit further evidence and take into account any other information or evidence (s 607(2)).

[88] Having regard to the above, we determined to seek further information about these matters. Accordingly, we caused an email to be sent to the parties on 1 August 2022 which noted that if we granted permission and upheld the appeal, it would be necessary to reconsider the application for approval of the Hot Wok Agreement having regard to all the approval criteria in ss 186 and 187 of the FW Act. The email stated that we preferred to deal with all the potential issues arising in the matter in a single decision, and therefore requested Hot Wok to provide further information about three matters (in summary):

(1) whether, in the event that the Hot Wok Agreement was found not to pass the BOOT, it would seek approval of the agreement under s 189 of the FW Act;

(2) the identity of the corporate entity which employed each of the five employees who made the Hot Wok Agreement in the period from 2 to 25 June 2021; and

(3) the positions held by Ms Wu and Ms Li, and the other three employees (who included, on the information before us, Jack Nicholson and Ashmit Subedi), in the period 2 to 25 June 2021, and how it was said that they fell within the coverage of the Hot Wok Agreement at the time it was made, including what classifications were said to apply to them.

[89] In respect of matters (2) and (3), we identified the information about Ms Wu and Ms Li which had caused us to request this further information. We requested that the information sought in respect of matters (2) and (3) be provided by way of a statutory declaration made by a person with the requisite authority and knowledge, and that the information be provided by 8 August 2022.

[90] On 8 August 2022, lawyers acting for Hot Wok sent the Commission an email in response which, leaving aside formal parts, stated:

“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.”

[91] While it might be inferred that this email is to be read as responsive to item (1) of the request for further information, it was plainly non-responsive to items (2) and (3). Consequently we issued a statement on 9 August 2022 46 (Statement) in which (in summary) we referred to our email of 1 August 2022 and Hot Wok’s response, and stated that the matters identified in items (2) and (3) of that email had given rise to a concern on our part that 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, and that Mr Latham’s declaration of 8 July 2021 may have contained a number of incorrect statements of fact, with the possibility that this was intentional. We also stated that we had by now become aware of the circumstances of the earlier, discontinued application made by Hot Wok for approval of an enterprise agreement in the same terms as the Hot Wok Agreement, and stated that this had given rise to a further concern on our part that there might be 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. We then said:

“[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:

Mr Darren Latham
Ms Shanshan (Shirley) Li
Ms Suet Ying (Carol) Wu
Mr Jack Nicholson
Mr Ashmit Subedi;

(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.”

[92] We said in the Statement that we would give the parties an opportunity to respond to this provisional view at a hearing on 12 August 2022. In written submissions provided to the Commission shortly before the hearing on 12 August 2022, and at the hearing, Hot Wok submitted, first, that we should recuse ourselves from further hearing the appeal on the basis of a reasonable apprehension of bias and, second, that we should not in any event proceed to make the orders the subject of the provisional view in the Statement. The second submission was advanced on the basis inter alia that the evidence sought by way of the provisional orders would not be relevant to the determination of the appeal because the issues on appeal are identified in the UWU’s notice of appeal and submissions, and it was not appropriate for the Commission to introduce new issues for determination of its own volition.

[93] In a decision issued on 18 August 2022 47 (August decision), we rejected Hot Wok’s recusal application.48 We also determined as follows:

“[24] … we consider that the making of the provisional orders constitutes the only viable procedural way by which the concerns we have raised may be addressed. However, before we proceed to make such orders, we will allow Hot Wok one further opportunity to respond to our concerns in the manner proposed in our email of 1 August 2022. Therefore, we request that Hot Wok provide information addressing the matters identified in paragraphs [4], [6]-[7] and [10] of the Statement, by way of a statutory declaration made by a person with the requisite authority and knowledge, by 5.00pm AEST on Tuesday 23 August 2022. If such a declaration is filed, the person making the declaration shall make themself available for cross-examination and any questioning which we might consider necessary at a further hearing at 10.00am AEST on Wednesday 31 August 2022 in Brisbane.

[25] If Hot Wok chooses not to take advantage of this opportunity, we shall issue the provisional orders. Hot Wok has raised some issues about the terms of the order for the production of documents, but we shall deal with that if and when it becomes necessary. If the orders are issued, the documents will be required to be produced to the Commission by 5.00pm AEST on Monday 29 August 2022, and the witnesses will be required to attend and give evidence at the further hearing at 10.00am AEST on Wednesday 31 August 2022 in Brisbane.”

[94] By email dated 23 August 2022, Hot Wok informed the Commission that it did not intend to provide the statutory declaration referred to in paragraph [24] of the August decision. It said that it did not consider that it would be appropriate to do so because the information sought was not relevant to the issues in the appeal, the matters to be dealt with in the appeal were those raised by the appeal and were not at large, and the Commission had no power to compel the maker of the declaration to give evidence.

[95] The hearing date was, on 24 August 2022, changed to 9 September 2022 because of an issue concerning the availability of counsel. On 25 August 2022 we issued orders requiring Darren Latham, Suet Ying (Carol) Wu, Shanshan (Shirley) Li, Jack Nicholson, and Ashmit Subedi to attend the hearing on 9 September 2022 and requiring Hot Wok and SSE to produce documents concerning the employment of Ms Wu, Ms Li, Mr Nicholson and Mr Subedi to the Commission by 6 September 2022.

[96] On 30 August 2022, Hot Wok instituted proceedings in the Federal Court of Australia against the UWU and the Commission (Federal Court application). The relief it seeks under s 39B of the Judiciary Act 1903 and s 21 of the Federal Court of Australia Act 1976 is:

1. A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, that in matter C2022/3219, the Second Respondent (constituted by members of a Full Bench) exceeded its appellate jurisdiction and thereby fell into jurisdictional error, by taking steps to formulate and inquire into the matter which is the subject of the appeal other than in relation to the grounds of appeal raised by the First Respondent, including by the invocation of powers under s.590(2) of the Fair Work Act to compel the production of documents and the attendance of persons to give evidence.

2. A writ of mandamus requiring the Second Respondent to hear and determine the First Respondent’s application for permission to appeal (and, if permission is granted, its appeal) in matter C2022/3219 under s 604(1) of the Fair Work Act 2009 (Cth) in accordance with law.

[97] On 31 August 2022, Hot Wok applied for the appeal proceeding before us to be adjourned pending the determination of the Federal Court application. The UWU opposed this. In a decision issued on 2 September 2022, 49 we rejected the adjournment application and, in doing so, took into account that Hot Wok had made no submissions about the merits of the Federal Court application and had not sought either interlocutory relief or an expedited hearing in the Court.

[98] On 5 September 2022, Hot Wok applied to the Court for the following interlocutory order:

1. Until the hearing and determination of this proceeding or until further order, the Fair Work Commission be restrained from proceeding with any further hearing, or taking any further action or step in matter C2022/3219.

[99] This application was heard by the Court (Thomas J) on 6 September 2022. On 7 September 2022, the Court issued the following orders with respect to Hot Wok’s interlocutory and substantive applications:

1. The Applicant file and serve an outline of submissions by 4.30 pm on 21 September 2022.

2. The First Respondent file and serve an outline of submission by 4.30 pm on 5 October 2022.

3. The Applicant file and serve submissions in reply by 4.30 pm on 12 October 2022.

4. The matter be set down for hearing on a date to be fixed.

5. The Applicant’s interlocutory application filed on 5 September 2022 be adjourned to a date to be fixed.

6. The parties have liberty to apply.

[100] Late on 7 September 2022, Hot Wok applied to us again for an adjournment of the appeal proceeding pending the determination of the Federal Court application. On 8 September 2022, we conducted a hearing in relation to the adjournment application. At this hearing, Hot Wok confirmed that it sought the adjournment of the appeal proceeding in its entirety, not just that aspect of the proceeding emanating from concerns identified in our email of 1 August 2022 and our Statement. The UWU’s position was that it consented to the application, but only in relation to the hearing listed for 9 September 2022. Its consent was based in part on an understanding that the Federal Court application would be the subject of an expedited hearing in “early to mid-October” 2022.

[101] On 8 September 2022, after the hearing, we informed the parties by email that we had determined to vacate the hearing on 9 September 2022 and to excuse Mr Latham, Ms Wu, Ms Li, Mr Nicholson and Mr Subedi from attendance at the Commission until further order. 50 We indicated that we would publish our reasons for this decision in due course. Our reasons were that, given Hot Wok’s application would be the subject of an expedited hearing in the Federal Court and the UWU consented to the vacation of the hearing, we considered the most appropriate course in the interests of justice was to defer dealing with the matters of concern identified in our email of 1 August 2022 and our Statement until the Federal Court application has been heard and determined. However, we did not grant Hot Wok’s application for an adjournment of the appeal proceeding in its entirety, since we considered that the Federal Court application did not give rise to any impediment to us determining those aspects of the appeal which arising directly from the UWU’s notice of appeal as filed, which were the subject of full argument at the hearing before us on 21 July 2022, and which do not intersect with anything raised by the Federal Court application.

[102] On 13 September 2022, the UWU made an application (amendment application) for permission to amend its notice of appeal to add the following additional ground:

“Further, and in any event, the Agreement could not be approved because, in fact:

(a) it had not been made pursuant to section 182(1) of the FW Act; and

(b) further or alternatively, it had not been genuinely agreed to pursuant to section 186(2)(a).

Particulars

(i) Some or all of the employees who purportedly voted to approve the Agreement would not be Relevant Employees because their jobs did not fall within the classifications in the Agreement.

(ii) Some or all of the employees who purportedly voted to approve the Agreement would not be Relevant Employees because they were not employed by the respondent at the time the agreement was purportedly made.”

[103] The UWU sought that this amendment be allowed on the basis that it has only become aware of the matters raised by the proposed amendment following the appeal hearing. In conjunction with its amendment application, the UWU has sought an order that Hot Wok produce to the Commission documents relating to the employment of Ms Wu, Ms Li, Mr Nicholson and Mr Subedi, and has also applied for the production by the Commission of its files in relation to a number of matters involving entities in Mantle Group Hospitality. Hot Wok opposes the orders sought and has submitted, inter alia, that the UWU’s amendment application is “an attempt to circumvent the Federal Court proceedings” and that the determination of this application should be deferred until the determination of the Federal Court application.

[104] Having regard to Hot Wok’s submission, we had originally intended not to determine the amendment application and the related application for orders for production prior to the determination of the Federal Court application. However, it came to our attention on 10 October 2022, albeit not as a result of any advice received from the parties, that on 29 September 2022 the Federal Court had vacated its orders of 7 September 2022 (as set out in paragraph [99] above, though we note those were varied on 21 September 2022 to extend deadlines) by consent. We caused an inquiry to be made about this via the Australian Government Solicitor. The advice we have received is that the Court proceedings have been adjourned by consent to allow us sufficient time to issue a decision in relation to the amendment application and for the parties to consider the potential impact of this decision on Hot Wok’s Federal Court application. We take it from this therefore that, contrary to Hot Wok’s earlier stated position, the parties are now content for us to determine the amendment application (and, presumably, the associated applications for orders for production) prior to the hearing of the Federal Court application. We observe that it is unsatisfactory that, having reached this position, neither of the parties informed us about it.

[105] Having regard to these matters, in this decision we will determine:

(1) the question of whether the UWU should be granted an extension of time to file its appeal;

(2) the issue of permission to appeal;

(3) the UWU’s first appeal ground (which concerns the BOOT) and the related fourth appeal ground (which concerns the undertakings accepted by the Deputy President);

(4) the amendment application (including the associated applications for orders for production).

[106] We will not in this decision determine the UWU’s second appeal ground (concerning whether the Hot Wok Agreement was genuinely agreed) or the third appeal ground (concerning the fairly chosen approval requirement) because, as earlier stated, the concerns identified in our email of 1 August 2022 and our Statement are arguably related to these grounds, and also because they arguably overlap with issues raised by the additional ground which the UWU seeks to add by its amendment application.

Consideration

Extension of time and permission to appeal

[107] The usually-applicable principles concerning whether an extension of time of time to lodge an appeal should be granted pursuant to r 56(2)(c) of the FWC Rules are stated in Jobs Australia v Eland. 51 The principal considerations are whether there is a satisfactory reason for the delay in filing the appeal, the length of the delay, the nature of the grounds of appeal and their prospects of success, and any prejudice to the respondent if time were extended. The question to be answered by reference to these considerations is whether, in all the circumstances, the interests of justice favour an extension of the time within which to lodge the appeal.52

[108] While it is clear that the UWU has a satisfactory explanation for its delay in filing the appeal up until 15 March 2022, when it first became aware of the existence of the Hot Wok Agreement, we agree with Hot Wok’s submission that the UWU did not satisfactorily explain why it then took until 31 May 2022 – 11 weeks later – to file its appeal. The delay is obviously very lengthy relative to the 21-day period allowed by r 56(2)(a). We also accept Hot Wok’s submissions that the grant of an extension of time will cause it prejudice, since it has been operating for many months under the assumptions that the Hot Wok Agreement has been approved, that the approval will not be legally challenged, and that it is lawfully entitled to remunerate its employees in accordance with the terms of that agreement.

[109] However, notwithstanding this, we consider that the interests of justice militate in favour of the grant of an extension of time. The appeal grounds raise the fundamental issue of whether the Hot Wok Agreement was lawfully capable of approval under s 186 of the FW Act and, for the reasons explained below, the UWU’s first and fourth appeal grounds at least have overwhelming merit. Further, we consider that there are public interest considerations at stake. The background history of this matter discloses a decades-long history of restaurant and hospitality employees of Mantle Group Hospitality being deprived of penalty rates for overtime, evening, weekend and public holiday work through the use of enterprise bargaining mechanisms. On one view the Hot Wok Agreement represents an attempted continuation of this notwithstanding the prospect of the termination of the Staff Services Agreement entered into in 1999. The events which have occurred since the approval of the Hot Wok Agreement whereby staff have been transferred in their employment from SSE to Hot Wok on the basis that they execute a “voluntary hours” agreement, tends to confirm this. The appeal therefore calls into question whether this situation can be allowed to continue. Also, as we have explained, this appeal gives rises to extremely serious issues of concern as to how the Hot Wok Agreement was (purportedly) made. Accordingly, we allow the UWU an extension of time until 31 May 2022 to lodge its appeal.

[110] For the same reasons, we consider that it would be in the public interest to grant permission to appeal. In that circumstance, s 604(2) of the FW Act requires that we grant permission.

Approach to the appeal generally

[111] Section 186(1) of the FW Act requires, in respect of an application for approval of an enterprise agreement that is (relevantly) made under s 185, that the Commission approve the agreement if the requirements set in ss 186 and 187 are met. The approval requirements that are the subject of the UWU’s appeal are as follows:

186 When the FWC must approve an enterprise agreement – general requirements

…

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement--the agreement has been genuinely agreed to by the employees covered by the agreement; and

. . .

(d) the agreement passes the better off overall test.

Requirement that the group of employees covered by the agreement is fairly chosen

(3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.

[112] Whether the above approval requirements are met depends upon the satisfaction of the member of the Commission who hears and determines the application for approval of the relevant agreement. On appeal therefore, it is not sufficient that a Full Bench would form a different view as to the relevant approval requirement for an appeal to succeed. Rather, because the requirement for the member’s satisfaction as to the approval criteria indicates that the statute allows a degree of latitude as to the choice of the decision to be made, the House v The King standard of appellate review applies on appeal. 53 This means in this case that the UWU must demonstrate, in order for its appeal to succeed, that the Deputy President acted upon a wrong principle, mistook the facts, took into account an irrelevant consideration or failed to take into account a material consideration, or made a decision which is plainly unreasonable or unjust.

Appeal grounds 1 and 4 – better off overall test and undertakings

[113] As explained in paragraphs [105] and [106] above, we will only deal with appeal grounds 1 and 4 in this decision and will defer consideration of the other grounds of the appeal, as well as the other matters which have arisen in the proceedings, until the Federal Court application has been determined.

[114] The BOOT which is the subject of the approval requirement in s 186(2)(d) is explicated in s 193 of the FW Act. As relevant to this appeal, s 193 provides:

193 Passing the better off overall test

When a non-greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

. . .

Award covered employee

(4) An award covered employee for an enterprise agreement is an employee who:

(a) is covered by the agreement; and

(b) at the test time, is covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and

(iii) covers his or her employer.

Prospective award covered employee

(5) A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:

(a) would be covered by the agreement; and

(b) would be covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) would cover the person in relation to the work that he or she would perform under the agreement; and

(iii) covers the employer.

Test time

(6) The test time is the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185.

FWC may assume employee better off overall in certain circumstances

(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.

[115] In ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association, 54 the High Court characterised the evaluative task required by the BOOT as follows:

“[99] Whether the Full Bench was satisfied that an employee was better off overall under the Agreement than under the award required an evaluative assessment after consideration of the provisions of the award and the Agreement that may have been more beneficial to employees and those that may have been less beneficial (Re Armacell Australia Pty Ltd [2010] FWAFB 9985; (2010) 202 IR 38 at 49 [41]). This assessment is a matter of the kind which has been described in other contexts as:

‘a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds.’ (British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201, cited with approval in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 493-494;  59 ALR 529 at 532).”

[116] Of course, the extent to which there may be room for legitimate differences of opinion as to the application of the BOOT will vary from case to case. In most cases, the only matter which requires consideration in the application of the BOOT to an enterprise agreement for which approval is sought is the remuneration outcome produced under the agreement compared to that which would apply under the relevant award. Agreements which provide for non-monetary benefits for employees requiring consideration under the BOOT are comparatively rare. Where remuneration is the only BOOT issue, the required comparison will often be productive of only one mathematically correct answer. 55

[117] Hot Wok characterised the Hot Wok Agreement as a “loaded rates” agreement, and we accept that this is a substantially correct characterisation in that, at least for employees who enter into “voluntary hours” arrangements under clauses 4.2.3, 4.5(c) and/or 5.8.6, they receive a higher base rate of pay which loads in compensation for the award overtime, weekend and public holiday penalty rates they may not otherwise receive. The application of the BOOT to enterprise agreements containing loaded rate structures was the subject of specific consideration in the Full Bench decision in Loaded Rates Agreements. 56 The following propositions, relevant to this appeal, were stated in that decision:

•  The BOOT requires every existing and prospective award covered employee to be better off overall under the agreement for which approval is sought than under the relevant modern award. If any such employee is not better off overall, the agreement does not pass the BOOT.

•  The application of the BOOT to a loaded rates agreement will, in order for a meaningful comparison to be made, require an examination of the practices and arrangements concerning the working of ordinary and overtime hours by existing and prospective employees that flow from the terms of the agreement. This will likely require classes to be identified based on common patterns of working hours, taking into account evening, weekend and/or overtime hours worked.

•  The starting point for the assessment will necessarily be an examination of the terms of the agreement in order to ascertain the nature and characteristics of the employment for which the agreement provides or permits. For example if an enterprise agreement makes express provision for employees to be required to work ordinary hours on weekends, those provisions cannot be ignored for BOOT purposes simply because the employer asserts it does not currently utilise those working hours or roster patterns.

•  In the case of existing employees, this may involve an examination of existing roster patterns worked by various classes of employees as at the test time. The use of sample rosters to compare remuneration produced by a loaded rates pay structure compared to the relevant modern award may be an effective method of doing this. There may be objective evidence that a particular pattern of working hours or roster pattern permitted by an enterprise agreement is not practicable, or cannot or is unlikely to be worked.

•  In the case of prospective employees, the assessment will necessarily involve a degree of conjecture. In the case of an enterprise agreement operating at a defined workplace or workplaces, the Commission may be in a position to make sensible predictions about the basis upon which prospective employees might be engaged based on the roster patterns worked by existing employees. However if a business is small and/or still at the development stage, or the agreement would cover a wider range of classifications, work locations and/or roster patterns that are not in existence as at the test time, useful predictions may not readily be drawn from the way in which the existing workforce operates. In that situation the assessment will require an examination of the terms of the agreement in order to ascertain the nature and characteristics of the employment which the agreement provides for or permits. 57

[118] In this case there is little difficulty in identifying on the material before us (including the material that was before the Deputy President) the patterns of working hours which may realistically be required of employees working under the Hot Wok Agreement. Mr Latham’s Form F17 declaration, including the appended documents, and the correspondence sent by Hot Wok to the Deputy President, shows that Hot Wok operates in the restaurant and hospitality industry and that Hot Wok employees will be employed at establishments in the industry operated by Mantle Group Hospitality. One of these, the Milano restaurant in Brisbane, was specifically named, but it is clear that the Hot Wok Agreement was intended to and is being applied to other venues at which the Staff Services Agreement was previously applied, including the Jimmy’s on the Mall restaurant and the various Pig ‘N’ Whistle bars which Mantle Group Hospitality operates in Brisbane. It may reasonably be presumed that such establishments are open in the evenings on weekdays and on Saturdays and Sundays, and publicly-available information about the operating hours of these establishments confirms this. The voting cohort for the Hot Wok Agreement, subject to certain matters to which we will return, discloses that employees are engaged both on a permanent and casual basis, and the Knott decision at first instance discloses that, at the Milano restaurant at which Ms Wu and Mr Knott were employed, casual employees may be assigned to both weekday and weekend shifts and may work from one eight-hour shift per week to as much as 30 hours per week. 58 It may also be noted that the undertaking proffered by Hot Wok and accepted by the Deputy President limits the occasions on which an employee can work more than 10 ordinary hours per day to eight days in a four-week cycle: this suggests that shifts longer than 10 hours are required from time to time. It also may reasonably be presumed that Hot Wok intended to utilise the provision in the Hot Wok Agreement for voluntary hours agreements under which overtime and/or penalty rates are not payable. Further, the Thom decision and Mr De Rooy’s affidavit indicate that, earlier this year, employees were being transferred from employment with SSE to Hot Wok in anticipation of the termination of the Staff Services Agreement and, in doing so, were expected to execute “voluntary hours” agreements pursuant to all of clauses 4.2.3, 4.5(c) and 5.8.6 of the Hot Wok Agreement. Accordingly, we may approach the BOOT on the basis that some, perhaps all, employees of Hot Wok have entered into voluntary hours agreements.

[119] It may be accepted that, at the award rates applicable at the “test time” – that is, 8 July 2021, when the application for approval of the Hot Wok Agreement was filed – employees under the Hot Wok Agreement who had not signed a “voluntary hours” agreement would be better off overall under the agreement than under the Restaurant Award or the Hospitality Award. That is because, at that time, the ordinary rates in the Hot Wok Agreement were approximately 5 per cent above those in the awards, and an employee who was not subject to any “voluntary hours” agreement would receive penalty rates under the agreement equivalent to those payable under the awards. However, that is not the current position. As earlier stated, because the Hot Wok Agreement makes no provision for wage rises, the ordinary rates it prescribes are now lower than those in the awards. In that situation, s 206 of the FW Act operates to require Hot Wok to pay employees the base award rates. Employees who are not subject to “voluntary hours” agreements would therefore receive the same pay under the Hot Wok Agreement as under the relevant award, but they would not be better off overall under the agreement.

[120] We now turn to the position of employees who have signed “voluntary hours” agreements under clauses 4.2.3, 4.5(c) and 5.8.6. The critical point here — which is not disputed by Hot Wok — is that, unlike the Hot Wok Agreement, the Restaurant Award and the Hospitality Award provide for penalty rates to be paid for any overtime, evening, weekend or public holiday work that is performed, regardless of whether the employee might in any sense be regarded as “volunteering” for that work. In the Restaurant Award, this is made apparent in clauses 11.5, 23.1 and 24.2, and in the Hospitality Award by clauses 11.4, 28.2 and 29.2. That “voluntary hours” agreements represent a disadvantage to employees which must be taken into account in the BOOT has long been recognised. 59

[121] The inclusion of “voluntary hours” clauses in an enterprise agreement, such as those in clauses 4.2.3, 4.5(c) and 5.8.6, which have the effect of waiving the application of otherwise-applicable penalty rates, does not automatically mean that the agreement will fail the BOOT. Because the test is global in nature, an agreement may nonetheless pass the BOOT if it contains other benefits which outweigh the monetary disadvantage caused by the application of the “voluntary hours” provisions. In relation to the Hot Wok Agreement, the relevant question is whether the higher ordinary rates of pay in the agreement applicable at the “test time” monetarily outweigh the disadvantage caused by clauses 4.2.3, 4.5(c) and 5.8.6.

[122] It is plain that they do not, and therefore that the Hot Wok Agreement is incapable of passing the BOOT. This can be seen in a range of scenarios. The first is that of a full-time employee who works their ordinary hours plus two hours’ overtime per day over five days, Monday to Friday, with ordinary hours finishing before 7.00 pm, and who is subject to a voluntary hours agreement. The result is as follows:

[123] At the hearing of the appeal, we provided Hot Wok with this pay rate comparison and invited it to respond. In its written submission in response filed on 27 July 2022, Hot Wok submitted that, first, that we should not take into account such calculations because the issue for determination on appeal is whether the Deputy President did what she was obliged to do under the FW Act, that is to satisfy herself whether the BOOT was complied with. That submission is rejected since, as earlier stated, the Deputy President’s satisfaction as to the BOOT may be challenged on appeal on the basis that she failed to take into account a relevant consideration or reached a plainly unreasonable conclusion.

[124] Hot Wok further submitted that the above comparison assumes that all the overtime hours would be worked as “voluntary hours” under clause 4.2.3, when there is there is nothing in the Agreement which requires or suggests that an employee must make an election as to whether they will work voluntary overtime which will then bind them for the duration of their employment, and that an employee can opt to work voluntary additional hours on a shift by shift basis, or even an hour by hour basis. Thus, it advanced an alternative calculation whereby the same employee in the same scenario (at Level 1) worked eight of the 10 overtime hours as directed, and only two of the 10 hours on a voluntary basis, as follows:

[125] Thus Hot Wok submitted, in the above scenario, the employee would be better off under the Hot Wok Agreement by a margin of 3.02 per cent.

[126] This submission also cannot be accepted for several reasons. First, we consider that clause 4.2.3 of the Hot Wok Agreement does permit an ongoing “voluntary hours” agreement to be entered into which may operate to render all overtime hours worked as “voluntary” until such time as the agreement is revoked in writing by the employee. The “voluntary hours” application which Hot Wok expects new employees to sign on engagement, as set out in paragraph [31] above, demonstrates this. It expressly provides that, upon the employer agreeing to the application, “then … any time worked by me in excess of my ordinary hours of work … shall be paid at my ordinary hourly rate…”. Hot Wok’s alternative scenario would simply not arise in respect of the employees who have signed this “voluntary hours” application. Second, even taken at face value, Hot Wok’s submission does not preclude the possibility that all the overtime hours worked might be on a “voluntary” basis. Third, even if it is accepted, contrary to the evidence, that an employee might work a mixture of “directed” and “voluntary” hours, it only takes a change to the respective numbers of “directed” and “voluntary” hours, so that there are fewer of the former and more of the latter, to leave the employee worse off than under the awards. Finally, we note that Hot Wok did not suggest that the pattern of working hours in the scenario we used was not one that would not actually occur in the business.

[127] The disadvantage to employees becomes more significant once evening and weekend hours are considered. If the above full-time employee on a voluntary hours agreement under clauses 4.2.3 and 4.5(c) works the same number of hours over the five days from Wednesday to Sunday, with their shift ending at 11.00 pm each night, the result is as follows:

[128] If a casual employee on a voluntary hours agreement under clause 4.5(c) works an eight-hour shift on Friday ending at midnight performing work covered by the Hospitality Award, the result is:

[129] If a casual employee on a voluntary hours agreement under clause 4.5(c) works a Saturday shift of eight hours performing work covered by either the Restaurant Award or the Hospitality Award, the result is:

[130] If a casual employee on a voluntary hours agreement under clause 4.5(c) works a Sunday shift of eight hours, the result is:

[131] If a casual employee on a voluntary hours agreement under clause 5.8.6 works a public holiday shift of eight hours performing work covered by either the Restaurant Award or the Hospitality Award, the result is:

[132] In all the above scenarios, which we consider likely to arise in the operation of the business in which Hot Wok employees work (that is, they are not “hypothetical” in a business which operates during evenings and weekends), the Hot Wok Agreement fails to pass the BOOT for at least some (and, in most cases, all) classifications. There are a range of other scenarios which would produce the same result. Hot Wok did not identify any other benefit for which the Hot Wok Agreement provides that could weigh in the balance, and that is because there is none. This is not a case where there is room for a legitimate alternative view about the BOOT approval requirement because the assessment required to be undertaken in accordance with s 193 produces a mathematically certain outcome. On any view, the Hot Wok Agreement fails the BOOT, and fails it by a very wide margin.

[133] As earlier recounted, the initial checklist analysis of the Hot Wok Agreement which was prepared by Commission staff and provided to the Deputy President clearly identified clauses 4.2.3, 4.5(c) and 5.8.6 as raising concerns about whether the agreement passed the BOOT. The Deputy President, having received the checklist, entirely disregarded these provisions in her subsequent communication with Hot Wok seeking information about matters of concern and in her decision. In doing so, we consider that the Deputy President erred in failing to take into account a material matter which, under a proper application of the test in s 193, required consideration. Further, because the conclusion reached by the Deputy President that the Hot Wok Agreement passed the BOOT was so at odds with what was the only mathematically available conclusion, it must be characterised as objectively unreasonable. The UWU’s first appeal ground is therefore upheld on this basis. It is not necessary for us in the circumstances to give further consideration to the other matters of concern in relation to the BOOT raised in the checklist, including the rates of pay for junior office employees, waiting apprentices and for working on Christmas Day, and the exclusion of award allowances.

[134] It is obviously the case, as Hot Wok implicitly accepted, that the undertakings accepted by the Deputy President did not address the issue of non-compliance with the BOOT caused by clauses 4.2.3, 4.5(c) and 5.8.6 of the Hot Wok Agreement. The UWU’s fourth appeal ground is therefore also upheld.

The amendment application and applications for orders for the production of documents

[135] We have set out at paragraph [102] above the proposed additional ground of appeal which the UWU seeks be allowed in its amendment application. As earlier stated, the UWU has also filed two applications for the production of documents (the production applications). In the first application, the UWU seeks an order requiring Hot Wok to produce the following documents:

“(a) Any record evidencing, concerning or referring to the employment, including job title, responsibilities and duties of the following employees:

Ms Shanshan (Shirley) Li
Ms Suet Y[i]ng (Carol) Wu
Mr Jack Nicholson
Mr Ashmit Subedi
In the period of 14 May 2021 to 28 July 2021.”

[136] In the second application, Hot Wok seeks the production of copies of the following Commission files:

•  MGH Employment and Training Pty Ltd v Alexander Knott [2021] FWCFB 4728—file number C2021/17;

•  MGH Employment and Training Pty Ltd v Alexander Knot [2021] FWC 2498—file number C2021/2871;

•  Hot Wok Food Makers Pty Ltd — file number AG2021/9127;

•  MGH Employment and Training Pty Ltd — file number AG2021/5335; and

•  Staff Services Melbourne Pty Ltd — file number AG2016/7753.

[137] In its written submissions filed on 16 September 2022 opposing the amendment application, Hot Wok articulated an argument that we should defer consideration of the application (including the production applications) until its Federal Court application is determined. Having regard to the subsequent events outlined in paragraph [104] above, we assume that it is not necessary for us to consider this argument. In any event, having obtained a vacation of the hearing date before us on the basis, at least in part, that it had obtained an expedited hearing for its Federal Court application, Hot Wok has waived the right to have that submission considered by then consenting to the vacation of the arrangements for that expedited hearing.

[138] Hot Wok also submitted that we should recuse ourselves from determining the amendment application and the production applications, and that these applications should be determined by a differently constituted Full Bench, because a reasonable bystander would reasonably have the view that:

(a) the members of the Full Bench as currently constituted have already formed a view as to the merits of the UWU’s application; and

(b) because of this the Full Bench “might not bring an impartial mind to the resolution of the question the [Full Bench] is required to decide” 61 as the Full Bench might be regarded as already having decided the issue.

[139] This was said to be the case because, in the Statement and the August decision, “…the Commission has already determined that the new ground of appeal sought to be added through the Amendment Application is relevant and is to be a ground of appeal considered by the Commission in the current proceedings”. The recusal application was not developed beyond this proposition. Hot Wok also submitted that we should also recuse ourselves from determining the production applications because:

(a) the Full Bench has already decided to issue orders in almost identical terms as the orders now sought by the UWU and has determined the relevance of the documents to be produced; and

(b) it appears that the Full Bench has already determined that the documents sought to be inspected are relevant to these proceedings.

[140] For these reasons, it was submitted, “the reasonable observer would reasonably form the view that the Full Bench might not bring an impartial mind to its consideration of these issues”.

[141] It is necessary to deal with Hot Wok’s recusal application at the outset. The applicable principles are as stated in the High Court decision in Ebner v Official Trustee in Bankruptcy 62 concerning apprehended bias. In summary, a judge or tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the question they are required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.63 The application of the apprehension of bias principle requires two steps: first, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.64 It remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.65 Three propositions relevant to this matter may be added:

(1) Disqualification on the ground of apprehended bias must be “firmly established”, 66 and a finding of apprehended bias is not to be reached lightly.67

(2) An apprehension that an issue may be decided adversely to a party does not constitute an apprehension that the issue might be determined other than impartially. 68

(3) Where apprehended bias is asserted on the basis of a previous expression of opinion on an issue by the decision-maker, consideration of whether the “logical connection” required by the second step identified in Ebner exists will require an analysis of the role and importance of that issue in the matter to be determined. 69

[142] The recusal application in respect of the amendment application is rejected. In respect of the first step in Ebner, Hot Wok has not properly identified the factor which it is said might cause us to decide the amendment application other than impartially. Contrary to Hot Wok’s submissions, we did not express any view concerning the amendment of the UWU’s notice of appeal to add the additional identified ground. That the additional ground of appeal that the UWU seeks to add is based on the matters of concern we identified in the Statement and the August decision does not mean that we expressed any view about the proposed amendment. The highest it could be put is that, in expressing the view in the Statement and the August decision to the effect that the identified matters of concern were of relevance and significance in the appeal, that might be perceived as now favouring allowing the additional ground of appeal on that basis.

[143] As to the second step in Ebner, Hot Wok has not even made a cursory attempt in its submissions to establish, let alone firmly establish, this step. Hot Wok does not contend, in opposition to the grant of the amendment, that the proposed additional ground of appeal does not raise a matter which is of relevance and significance, nor that it would not, if substantiated, provide a proper basis for upholding the appeal against the Deputy President’s decision. Therefore, the fact that we may have expressed a view in the Statement and the August decision about the relevance and significance of the matters underlying the proposed additional ground of appeal does not relate to any issue actually in contention in relation to the amendment application. Further, Hot Wok has not explained why anything we stated in the Statement and the August decision might reasonably be perceived as causing us to determine the amendment application other than impartially or to refuse to consider fairly any matter it has raised in opposition to the amendment application. As was stated by Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal: 70

“A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry ... When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.” (underlining added)

[144] We likewise reject the recusal application in respect of the production applications. Hot Wok contends that we have previously expressed views about the “relevance” of the documents sought to the appeal, but does not in its submissions in opposition to the production applications contend that, in the event that the amendment application is granted, they are not relevant to the proposed additional ground of appeal. Its submissions go no higher that stating that the UWU has the onus of demonstrating the apparent relevance and forensic purpose of the documents sought. That by itself makes it difficult to establish the second step in Ebner, since it has not been explained why the view allegedly expressed earlier bears upon the issues in contest in respect of the production applications. More fundamentally, however, Hot Wok has again failed to articulate any reasonable basis for a perception that we might not determine the production applications other than impartially.

[145] We turn now to the amendment application. Section 586(a) of the FW Act confers a broad power to allow amendments to an application on any terms that the Commission considers appropriate. This power is to be exercised consistently with the principles usually applied by courts in respect of amendments sought to pleadings: the power to grant amendments may be exercised at any time during proceedings where required by the interests of justice and to allow for the proper determination of the real issues in dispute, and late amendments will not be refused to punish a party, but account must be taken of any prejudice to the other party, incurrence of costs and delay in the proceedings. 71 It is also necessary for the power to be exercised in conformity with ss 577 and 578 of the FW Act, and this will require, among other things, that the power is exercised in a way which is fair and just, and ensures quickness, informality and the avoidance of unnecessary technicalities.

[146] In its amendment application, the UWU contended that it had only become aware of the existence of the matters raised by its amendment following the hearing of the application and appeal. Hot Wok has submitted, in response to this, that the UWU had avoided setting out any specifics as to how and when it became aware of these matters and also why it did not bring its amendment application immediately on becoming aware of the matters, although it assumes that the UWU became aware of the matters as a result of the email of 1 August 2022 and the Statement. We do not consider that this submission raises any issue of significance weighing against the grant of the amendment. It is obvious, as Hot Wok has assumed, that the UWU became aware of the matters underlying the proposed additional appeal ground because of our 1 August 2022 email and the Statement. It is not disputed, and it is obviously the case, that the UWU was not aware of these matters before this. The UWU might have sought to amend its appeal grounds immediately after the Statement was issued, but it was, no doubt, relying on the fact that we intended on our own initiative to pursue the matter of concern identified in the Statement. After our capacity to do this was challenged by way of the Federal Court application, the UWU appears to have elected to take the course of seeking the amendment to raise the matters of concern as part of its pleaded case. This seems to us to be a legitimate course in the somewhat unusual circumstances of this case.

[147] Hot Wok does not submit that the proposed additional ground of appeal fails to identify a proper basis upon which the approval of the Hot Wok Agreement might be overturned. It is clear, we consider, that the additional ground raises a real issue to be tried. It is a fundamental requirement for the making of a non-greenfields enterprise agreement that the employees who vote to approve the agreement are employed by the relevant employer and will be covered by the agreement: ss 181(1) and 182(1). If this requirement is not complied with, the agreement may not be approved: ss 186(2)(a) and 188(1)(b). Therefore, if the proposed additional ground is made out, the appeal will succeed, and the approval of the Hot Wok Agreement must be quashed. The interests of justice (including the proper administration of the scheme for making enterprise agreements in Pt 2-4 of the FW Act) therefore favour the grant of the amendment.

[148] Hot Wok submits that the grant of the amendment will cause delay in the finalisation of the appeal and will cause it to incur additional costs. This is true in a limited sense. However, the significance of these matters is diminished for the following reasons:

(1) As earlier stated, the UWU did not know (and was in no position to know) about the matters which have given rise to the proposed additional ground of appeal until the 1 August 2022 email and the publication of the Statement, which both occurred after the hearing of the appeal.

(2) As outlined earlier in this decision, Hot Wok has consistently refused requests to voluntarily provide information to address the matters of concern identified in the 1 August 2022 email and the Statement which have given rise to the amendment application, and this has already caused the finalisation of the appeal proceedings to be unnecessarily protracted.

(3) Hot Wok’s own Federal Court application has had the effect, in any event, of delaying the finalisation of this appeal. It is not clear that the grant of the amendment will cause any further delay in addition to this.

[149] Having regard to the above matters, the UWU’s application to amend its notice of appeal is granted.

[150] In relation to the UWU’s first application for an order to produce documents, we accept Hot Wok’s submission that there is no utility in granting this order. The documents encompassed by the proposed order have already been produced, and the UWU has been granted access to these documents: see paragraphs [95] and [101] and footnote 50 above. Those documents may be used for the purpose of the proceedings.

[151] The UWU’s second application for the production of documents is misconceived. The power in s 590(2)(c) of the FW Act to require a person to produce documents to the Commission may not appropriately be used to seek access to the Commission’s files. Such access is governed by the Commission’s own policy concerning public access to its files. 72 This policy allows non-parties, as a matter of course, to inspect the case files for closed matters, except for specified categories of matters and except in relation to documents the subject of a confidentiality or non-publication order. The files sought by the UWU in relation to matters AG2021/9127, AG2021/5335 and AG2016/7753 do not fall within the excepted categories and do not contain any documents the subject of confidentiality or non-publication orders. Accordingly, access to these files will be arranged. The UWU may, if it considers necessary, apply for access to the other two files at a later stage in this proceeding upon demonstration of its purpose for doing so.

Next step

[152] The next step we propose to take in this matter is to conduct a directions hearing to establish an expedited program for the hearing and determination of the grounds of appeal not determined in this decision (including the new ground of appeal). The parties are invited at this directions hearing to advance any submissions they wish to make as to why we should not re-issue the orders we issued on 25 August 2022 requiring Darren Latham, Suet Ying (Carol) Wu, Shanshan (Shirley) Li, Jack Nicholson, and Ashmit Subedi to attend the Commission for the purpose of giving evidence.

Orders

[153] We order as follows:

(1) Time is extended for the UWU to file its appeal in this matter up to and including 31 May 2022.

(2) Permission to appeal is granted.

(3) Appeal grounds 1 and 4 are upheld.

(4) The UWU is granted access to the Commission’s files in matters AG2021/9127, AG2021/5335 and AG2016/7753.

(5) The appeal is listed for a further directions hearing at 12:30 pm (AEDT) / 11:30 am (AEST) on Friday, 28 October 2022.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR747090>

Appearances:

H Clift of counsel for the appellant.
G Fredericks of counsel for the respondent.

Hearing details:

2022.

Brisbane:
21 July.

Sydney, Brisbane and Melbourne by video link using Microsoft Teams:
12 August, 8 September.

 1   [2021] FWCA 4524

 2   As her Honour then was.

 3   AE512471

 4   [2022] FWCA 1543

 5   Matter AG2022/684

 6   Print S2794

 7   Ibid clause 1.5

 8   Matter AG2009/23002

 9   Then known as “Fair Work Australia”.

 10   PR993845

 11   PR535990

 12   [2013] FWC 2158

 13   Affidavit of Godfrey Mantle in matter AG2013/4797 at [11]

 14   ACN 638 901 934

 15   Matter AG2020/4190

 16   Matter C2021/17

 17   [2021] FWC 2498

 18   [2021] FWCFB 4728

 19   [2022] FCA 567

 20   Matter AG2021/5292

 21   Matter AG2021/6101

 22   [2021] FWCA 4524

 23   Matter AG2021/9127

 24   [2022] FWC 276

 25   PR738263

 26   [2022] FWC 276 at [4]

 27   Ibid at [12]

 28   Matter AG2021/9365

 29   Matter AG2022/684

 30   Mr Thom does not appear to have been a recipient of Mr Latham’s email of 6 January 2022.

 31   The Restaurant Award and the Hospitality Award provide for higher overtime rates on weekends.

 32   Calculated at the penalty rate of 225%. The penalty rate is 125% if, by agreement, the employee is given an additional day of annual leave or an alternative day off.

 33   None of these employees was a recipient of Mr Latham’s email of 6 January 2022.

 34   [2022] FWCA 1543

 35   As made applicable by item 16 of Sch 3 of the Transitional Act

 36   The Hospitality Award also has a separate classification structure applicable to employees in casinos.

 37   [2021] FWC 2498

 38   Ibid at [8]

 39   Ibid at [25]

 40   Ibid at [34]

 41   Ibid at [38]-[41]

 42   [2021] FWCFB 4728

 43   Ibid at [8]

 44   Ibid at [16]-[21]

 45   See One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77, 262 FCR 527 at [131]-[165]

 46   [2022] FWCFB 151

 47   [2022] FWCFB 158

 48   Ibid at [11]-[19]

 49   [2022] FWCFB 167

 50   In relation to the orders for production of documents issued on 25 August 2022, documents were produced to the Commission on 6 September 2022. We have granted the UWU access to those documents, noting that the implied Harman undertaking applies.

 51   [2014] FWCFB 4822 at [5]

 52   Ibid at [6]

 53    [1936] HCA 40, 55 CLR 499 at 504-505; Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194 at [19]-[21] per Gleeson CJ, Gaudron and Hayne JJ; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, 264 CLR 541 at [35]-[50] per Gageler J; Donnybrook Holdings Pty Ltd v CEPU [2021] FWCFB 1825 at [20]; National Electrical and Communications Association v Electrotechnology Group Training Company Ltd [2021] FWCFB 6073 at [29].

 54   [2017] HCA 53, 262 CLR 593

 55   Loaded Rates Agreements [2018] FWCFB 3610 at [112]

 56   Ibid

 57   Ibid at [115]

 58   [2021] FWC 2498 at [5]-[22]

 59   See e.g. Bupa Care Services Pty Ltd [2010] FWAFB 2762, 196 IR 1 at [5]-[40] (albeit in the context of the then-applicable “no disadvantage” test); National Retail Association [2013] FWCFB 2170, 232 IR 159 at [121]-[136]

 60   The base rates of pay are identical for corresponding classifications in the Restaurant Award and Hospitality Award.

 61   Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [6]

 62   Ibid

 63   Ibid at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ

 64   Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ

 65   CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [21] per Kiefel CJ and Gageler J

 66   Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J, 360 per Wilson J

 67   CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [56] per Nettle and Gordon JJ

 68   Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J

 69   British American Tobacco Australia Ltd v Peter Gordon and Anor [2007] NSWSC 109 at [97]

 70   [1990] HCA 31, 170 CLR 70 at 100

 71   Queensland v JL Holdings Pty Ltd [1997] HCA 1, 189 CLR 146; Aon Risk Services Limited v Australian National University [2009] HCA 27, 239 CLR 175

 72   FWC access to case file documents policy