ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application by CFMEU to make determination that first written warning issued to CFMEU delegate, Mr Aitken, pursuant to clause 29 of the Energy Australia Yallourn Enterprise Agreement 2013 (agreement), be withdrawn – warning issued for unauthorised direction of another employee to cease performing work – other employee was to give training in plant operation to team member who had become manager which was contrary to union policy – satisfied Mr Aitken instructed or directed other employee not to perform work – CFMEU submitted issuing of warning manifestly unjust or unreasonable and should be withdrawn – some weight in submission and mitigating circumstances – however on balance did not consider decision to issue warning manifestly unjust or unreasonable – CFMEU submitted disciplinary action under clause 29 may only be conducted after investigation – Mr Aitken not made aware of investigation – Commission held Mr Aitken denied natural justice in serious breach of clause – warning not issued in accordance with clause 29 because an investigation was not conducted – determined that part of resolution of dispute was that the warning be withdrawn and was of no effect as it was not issued in accordance with clause 29 – determined that final outcome of matter should be that Commission determines appropriate disciplinary outcome to be either; no further action; an oral warning or a first written warning with effective period reduced to six months – parties to make submissions on this matter within seven days. Construction, Forestry, Mining and Energy Union v Energy Australia Yallourn P/L
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