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A Fair Work Commission (FWC) full bench has overturned the approval of the Mantle Group’s Hot Wok agreement, accusing it of “deliberate manipulation of the statutory process of making enterprise agreements” and is considering referring the company’s senior HR manager to the Australian Federal Police for potential criminal prosecution for deliberately providing false or misleading information to the tribunal.

In 2021, Mantle Group subsidiary the Hot Wok Food Makers Pty Ltd moved workers from zombie deal Staff Services Pty Ltd Certified Agreement that allowed the company to avoid paying penalty rates to its workers for 22 years, to the Hot Wok Food Makers Pty Ltd workplace agreement, which won endorsement from the FWC’s then Deputy President Amanda Mansini.

Commissioner Hunt last year, who became involved in the matter after a worker asked the FWC to terminate the zombie deal, found the Hot Wok agreement “could never satisfy the BOOT” because of a provision that allowed the company to ask workers to perform voluntary additional hours without penalty rates.

A full bench comprising Acting President Adam Hatcher and deputy presidents Ingrid Asbury and Val Gostencnik yesterday upheld the UWU’s appeal against Deputy President Mansini’s approval of the Hot Wok agreement.

The bench found that the deputy president had “substantially relied” on the HR manager’s “false or misleading” employer declaration when she approved the deal and warned “the process for considering applications for the approval of enterprise agreements would break down entirely if, in every case, the Commission was required to ‘go behind’ and investigate for itself the truth of the matters asserted in such declarations”.

Agreement not genuinely agreed

The bench upheld the UWU’s assertion that the agreement had not been genuinely agreed by employees that would be covered, as required by the Fair Work Act’s s186(2)(a) and s188(1)(b).

The four employees that the HR manager listed as employees who would be covered by the agreement, and had supposedly voted for it, comprised two venue managers, an area manager and a payroll manager.

The bench confirmed that no classification in the Hot Wok agreement applied to these four employees and the agreement did not cover them.

The bench said Hot Wok’s “selection of four relatively high-paid managers to ‘make’ the Hot Wok agreement was part of a deliberate manipulation of the statutory process for making enterprise agreements”.

“Their approval of the agreement, which was subsequently to apply to a host of employees who were not to be given the opportunity to bargain or vote, was entirely lacking in authenticity and moral authority.

“The four employees made the choice on behalf of the large number of employees to whom the agreement was actually intended to apply but who were deprived of any say in it,” they said.

Relying on their evidence, the bench deduced that the two information sessions and a voting meeting that the HR manager claimed he and the four employees attended never took place.

They found that the four employees, with one possible exception, lacked credibility and their failure to recall events was “frankly incredible”.

HR manager misled the Commission

When she approved the Hot Wok agreement, Deputy President Mansini directed Hot Wok to provide a copy of a statement she had made about the application to any transferring employee and any potentially transferring employee.

The HR manager emailed ten employees with the statement.

The bench found that at best one of these employees and perhaps none were covered by the Staff Services agreement and that the company failed to send the email to a large number of employees to whom the change would apply.

They found that the HR manager formulated the email “to deceive the Commission into believing that Hot Wok had complied with its direction”.

His declaration also contained “false or misleading” details about the agreement information sessions, the voting process and the number of employees covered.

The bench highlighted that knowingly giving false or misleading information or knowingly producing a false or misleading document in support of an enterprise agreement application is an offence under s137.1 and 137.2 of the Criminal Code.

After weighing-up the HR manager’s false declaration, the bench asked the Commission’s general manager, Murray Furlong, to consider whether the his conduct should be referred to the Australian Federal Police.

The bench quashed Deputy Mansini’s approval of the Hot Wok agreement, dismissed the application for its approval and will hear the parties on costs.

It confirmed that the agreement failed to meet the BOOT test.

In a statement yesterday, the UWU industrial officer Martin de Rooy said “this decision should prompt Mantle Group to negotiate a union agreement with its workers.”

Maurice Blackburn principal Giri Sivaraman, who acted for the UWU, said “the company will now have to do a complete audit and backpay hundreds of young casual workers who were unlawfully denied penalty rates”.

United Workers’ Union (108V) v Hot Wok Food Makers Pty Ltd [2023] FWCFB 4 (12 January 2023)