Mantle Group has argued before the Federal Court that the Fair Work Commission overstepped in its investigation of the company’s workplace deal that was found to be depriving hundreds of workers of penalty rates.
Queensland’s largest hospitality group, Mantle operates pubs in Brisbane, including the Pig N Whistle chain, James Squire brew house and Jimmy’s On the Mall, and Squire’s Landing in Sydney.
In 2022 the pub group faced accusations of underpaying staff under a so-called ‘zombie’ agreement.
The Fair Work Commission (FWC), led by president Justice Adam Hatcher, found that the group’s panel of four staff that would set rates for around 700 employees across 15 Mantle venues were in fact venue managers and one employee not even covered by the agreement.
As per the deal, hundreds of casuals “voluntarily” gave up weekend and evening penalty rates, which continued the operator’s practice of not paying penalty rates that had reputedly been going on for decades.
A major union deal signed in May saw the group agree to resume paying penalty rates.
But this week, before a full bench of the Federal Court, Mantle’s defence argued that FWC was biased in its ruling, which subsequently prompted the highly unusual event of the group’s HR manager Darren Latham being referred to police for investigation.
Mantle’s lawyers accused the bench of deliberately providing false and misleading information about the agreement, further claiming bias in the Commission assuming the role of investigator in specifics of the agreement. It was proffered that the FWC sought to “advance” the “substantial investigation” to the point it “seems to not be in keeping with the role of impartial adjudicator”.
According to the Fair Work Act, the FWC specifically had the power to conduct its own inquiries and Justice Berna Collier responded that raising such concerns and calling parties to speak was standard procedure.
Justice Natalie Charlesworth went further, to question what other choice did the commission have when presented with information the employees’ voting representatives were not subject to the deal, labelling the core of the objection “meaningless”.
“What was it about these inquiries that went too far?” she said.
Mantle’s defence also described the reaction to the group’s initial proposal deliberately stubborn, “contumacious”, containing forced language tantamount to apprehended bias.
The group’s initial response to the findings was to instead propose simply withdrawing its revised agreement, and the FWC suggested it appeared as a patronising “don’t worry your pretty little heads” solution masking “some kind of stunt” being executed.
Hamish Clift, for the United Workers Union, argued Mantle had not met the threshold for bias, pointing to what he described as ample evidence, and suggesting it didn’t matter anyway as the outcome could never have been different, as the agreement “could never ever have passed the better off overall test”.
A result of the Federal Court appeal may be pivotal to the future of the group, as Brisbane City Council warned earlier this year it would be reviewing its lease agreements with Mantle pending the outcome.
