ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – anti-bullying – ss.739, 789FC Fair Work Act 2009 – application to deal with dispute in accordance with dispute settlement procedures in the Essential Energy Far West Electricity Enterprise Agreement 2011 and Essential Energy (Electricity) Agreement 2013 (the Agreements) – two employees were advised substantive positions no longer required – now redeployees – Essential Energy had policy not to accept application for voluntary redundancy where employee entitled to more than 52 weeks’ redundancy pay – employees’ entitlements more than 52 weeks – applications for voluntary redundancy rejected – employees worked for 15 months, one given no tasks and other given insufficient meaningful work – CFMEU submitted Essential Energy obliged to pay redundancy pay as no meaningful roles or sufficient meaningful work provided – not a valid exercise of managerial prerogative – Essential Energy submitted acted reasonably in deciding not to accept applications, pursuing redeployment opportunities and providing temporary placements in meantime – employees also applied for orders to stop bullying – alleged bullying behaviour by CEO in leaving applicants without meaningful work and role for lengthy period – regarding anti-bullying applications, Commission noted that to meet bullying definition behaviour must be directed to or at the individual – Commission found no basis to infer that Essential Energy’s decision to adopt policy was directed to or at either employee personally – applications dismissed – in relation to disputes under the Agreements, Commission satisfied applicants’ employment not terminated – no repudiation – no contractual obligation for employer to provide work – no breach of terms of Agreements – found Essential Energy had not acted unlawfully – in absence of specific limitation in the Agreements, Commission not restricted to considering whether employer acted lawfully – under managerial prerogative principle, Commission not to interfere with right of employer to manage own business unless employer seeking something from employees which is unjust or unreasonable [XPT Case] – not unreasonable for Essential Energy to adopt general policy, but reasonableness undermined where unable to find useful work for employees whose roles were abolished and seeking voluntary redundancy – inevitable point where more costly to retain as employees than to accept voluntary redundancy – unreasonable as objectively irrational [Bropho] – impact on employees harsh – Essential Energy ordered to accept employees’ applications for voluntary redundancy. Millman and Anor v Essential Energy and Anor; Construction, Forestry, Mining and Energy Union v Essential Energy
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