ENTERPRISE AGREEMENTS – termination of agreement – s.225 Fair Work Act 2009 – Full Bench – application for termination of agreement after nominal expiry date – applicant made three interlocutory applications – first was for order for production by Coles of store rosters for two stores over a period in 2011 (13 September application) – applicant alleged that 2011 Agreement did not pass BOOT at time Coles applied for approval and Coles acted improperly when providing requested information to Commission concerning BOOT – Full Bench considered that applicant had advanced a case challenging at least one aspect of approval process and that case was critical to applicant’s position that 2011 Agreement should be terminated retrospective to date of approval – satisfied that pertinent documents relating to how Coles responded to Commission’s request for randomly selected rosters had the necessary apparent relevance to an issue in contest in the proceedings – Full Bench would not permit provision of documents to be used to undertake a new series of pay comparisons which would result in production of a further expert’s report before hearing – considered better course to resolve applicant’s allegation would be to require Coles to provide an affidavit from person who oversaw response to Commission request; and produce all documents recording or concerning Coles’ response to request – orders to that effect made – 13 September application refused – second application was for variation of Full Bench’s directions of 8 September 2017 specifying filing dates and programming of matter for final hearing (9 October application) – Full Bench considered that applicant had been afforded more than adequate opportunity to file evidentiary case, and any further extension of time to allow her to file more material would not be fair or just and would cause further delay – 9 October application rejected – third application was for orders to compel Coles to re-file its expert report in a modified form, and to serve on applicant data provided to expert to form basis of report and a document referred to in report (11 October application) – Full Bench considered that applicant could request that Coles provide supporting documents or underlying calculations and Coles would respond promptly – in case of a dispute, applicant could apply for order for production – applicant could object to admissibility of expert report, or make submissions as to weight to be assigned to it, at the hearing – 11 October application rejected. Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd Retail Agreement 2011
November 9, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with dispute under Visy (Smithfield, Warwick, Dandenong, O’Connor) Enterprise Agreement 2016 – contractors worked for respondent for more than 3 months – respondent assessed contractors for employment but did not offer them employment – whether Commission has jurisdiction to determine matter – whether clause 16 is a permitted matter under s.172(1)(a) FW Act as it requires employer to offer employment to employees of third party – whether respondent is required to offer contractors full time permanent employment – jurisdiction determined and upheld under clause 23 of Agreement – Commission noted that terms in an agreement not about permitted maters have no effect due to s.253 – matters pertaining to employment relationship identified in Explanatory Memorandum to Fair Work Bill 2009 – Murray Bridge considered and dismissed – clause 16.1 applied certain limits to use of casual and labour hire employees – clause 16.3 provided that respondent shall offer full-time permanent employment at end of three month period, if a casual employee was engaged for more than three months – Commission held that terms place limits on respondent’s ability to use labour hire workers – held that clause 16.3 dealt with the fact of recruitment not standards or procedures used to select employees – held that clause 16.3 undermines job security and restricts or qualifies respondent’s right to use independent contractors in a way that is not sufficiently related to job security – found that clauses 16.1 and 16.3 are not about permitted matters, except requirement in clause 16.3 to provide information to employees and relevant unions about casual employment – application dismissed. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Visy Board P/L t/a Visy Board
November 9, 2017
ENTERPRISE AGREEMENTS – termination of agreement – s.225 Fair Work Act 2009 – application by Lower North Shore Community Transport Inc t/a Community Connect Transport Services for termination of the LNSCT Employee Collective Agreement 2009 after its nominal expiry date – a group of employees objected to application due to negative effects – if terminated, employees would be covered by the Social, Community, Home Care and Disability Services Award 2010 – applicant provided various undertakings, including to preserve current rates of pay to compensate for lower pay rates under the Award – parties agreed to terminate Agreement – whether contrary to the public interest for the Agreement to be terminated [Re Kellogg Brown and Root] – Commission satisfied negative effects raised by employees addressed by undertakings – satisfied appropriate to terminate Agreement – Agreement terminated with effect from 25 October 2017. LNSCT Employee Collective Agreement 2009
November 9, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as a sales representative – dismissed after respondent came to the view that it could not afford a full-time sales representative based on applicant’s sales figures – whether genuine redundancy – Commission found the dismissal unjust as the respondent failed to fulfil its obligation to consult with the applicant under the Storage Services and Wholesale Award 2010 – consultation must be meaningful and not merely an afterthought to be genuine [Maswan] – respondent’s failure to consult rendered the dismissal unreasonable even though there was valid reason for dismissal [Harvey] – respondent submitted it was a small business per the FW Act and dismissal was consistent with Small Business Fair Dismissal Code – Commission held the dismissal not consistent with the Code as not a genuine redundancy – the size of the business does not absolve it of responsibility in the method adopted in effecting dismissal – found applicant unfairly dismissed – ordered compensation of $6,723.92 plus 9.5% superannuation. Marafioti v Gonzalez P/L t/a Mac’s Crafts
November 9, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed at a furniture store – during an argument, applicant raised her voice and grabbed colleague’s wrist – respondent arranged meeting to discuss incident – applicant requested more time to organise support person – respondent did not respond to request – Commission found that respondent unreasonably refused to allow support person by failing to postpone meeting – Commission found that applicant was not given an opportunity to respond to allegation – Guillermo considered – no evidence of past misconduct – Raj Bista considered – Commission considered Crimes Act 1958 (Vic) – intention element for assault not made out – applicant expressed remorse and was forthcoming with evidence – Commission satisfied that dismissal was harsh, unjust or unreasonable – dismissal unfair – applicant reinstated to equivalent position at different location – compensation ordered for loss resulting from dismissal, minus three weeks’ pay for applicant’s unacceptable behaviour. Broadhead v Furniture Galore P/L t/a Furniture Galore
November 9, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute concerned interpretation of casual conversion clause in Charles Sturt University Enterprise Agreement 2013-2016 – respondent raised jurisdictional objections – Commission found it had jurisdiction to consider dispute – applicant applied for conversion from casual to continuing employment – respondent offered fixed term employment – whether respondent failed to convert applicant’s employment to continuing in accordance with requirements of agreement – agreements to be interpreted according to ordinary meaning [Golden Cockerel; Berri] – Commission compared relevant clauses in agreement and Higher Education General Staff Award 2010 – clauses different in how employer responds to application – respondent only required to determinate – rejected that respondent must respond to conversion application by either converting to continuing or fixed term – respondent has absolute discretion to determine – not satisfied Agreement contains a right of conversion – Commission not satisfied applicant was eligible to convert. Wedgwood v Charles Sturt University t/a Charles Sturt University
November 9, 2017
RIGHT OF ENTRY – suspension of permit – s.510 Fair Work Act 2009 – matter commenced on Commission’s own initiative – whether Commission should revoke or suspend Mr Kirner’s entry permit pursuant – two decisions of Federal Court found Mr Kirner contravened s.500 of the FW Act – appeal by Mr Kirner and CFMEU dismissed by Full Court of the Federal Court – CFMEU submit that any further action against Mr Kirner would be unreasonable or harsh – Commission gave limited weight to the fact that the suspension would have an effect on the ability of CFMEU to represent members – Commission did not accept that the contravention was of a very low level – accepted that factors weighed in Mr Kirner’s favour: the matter occurred 4 years ago; considerable period of good behaviour; legitimate reasons for wanting to be on site; and further training on right of entry – Commission suspended Mr Kirner’s entry permit for a period of three months. Fair Work Commission v Kirner
November 9, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – plain language project – Restaurant Industry Award 2010 – plain language re-drafting of award-specific clauses – provisional view expressed relating to distance work allowance clause – revised plain language exposure draft published with decision – parties invited to review draft – provide short written submission regarding provisional view by no later than 4.00 pm Monday, 20 November 2017. 4 yearly review of modern awards – Plain language re-drafting
