Twenty four unfair dismissal/labour dispute applications will be heard by the Fair Work Commission today. The full list is: Ultratune Roadside (Eblen), Woolworths Pty Ltd (AlChaher), Confident Smile Dental Surgery (Alcorn), Department of Planning, Transport and Infrastructure (Novakov), Calvary Health Care Bruce (Kim), ACT Health Directorate (Hays, Jones), Anthony Costello Automotive (Hunter), Eureka Operation Pty Ltd (Garg), Ausino West Pty Ltd ATF The Supercrane Unit Trust (Raschilla), Freycinet Vineyards Pty Ltd (Bent), Paper Australia Pty Ltd (Smokovski), Anthony Costello Automotive (Hunter), Glenview Community Services Inc (Tanner), The Groove Train Northland (Birch), Bristow Helicopters Australia Pty Ltd (McCreadie, Rowland), Yancoal Australia Ltd (Hanckel), Anthony Costello Automotive (Hunter), Martin Sayle (Musumeci), Royal Flying Doctor Service of Australia (Queensland Section) Limited (Hardy), The GEO Group Australia Pty Ltd (Reihana), The GEO Group (Reilly).
October 31, 2017
CASE PROCEDURES – appeals – extension of time – s.604 Fair Work Act 2009 – appeal – Full Bench – appeal against unfair dismissal decision – lodged more than three years out of time – extension of time sought on grounds of medical condition and advice that appellant claimed was deficient – material filed did not establish that appellant was unable to file appeal in the three-year period – no evidence of finding of WA Legal Profession Complaints Committee relating to legal advice provided to appellant – other advice and appellant’s level of education irrelevant – appellant commenced civil proceedings after decision under appeal – open to appellant to appeal in the same period – not satisfied reasons provide satisfactory reason for delay either individually or as a whole – considered nature of appeal grounds and likelihood of being upheld – finding that appellant’s conduct was serious misconduct within meaning of FW Regulations at least arguable ground of appeal but not likely to succeed – Titan considered – appellant submitted four matters not considered at first instance – Full Bench found these matters were considered where raised – no arguable case of appellable error in Commissioner’s consideration of appellant’s conduct at termination meeting – unlikely that any allegations relating to legal representation would be upheld – respondent did not assert any prejudice if time were extended – Full Bench not persuaded to allow further time to lodge appeal – application to extend time dismissed – permission to appeal would not have been granted if time were extended. Appeal by Wilson against decision and order of Cloghan C of 20 August 2014 [[2014] FWC 5503 and PR554512] Re: CPB Contractors P/L
October 31, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.400, 604 Fair Work Act 2009 – appeal – Full Bench – application for unfair dismissal remedy – Commission at first instance found dismissal was genuine redundancy – appellant contended redundancy not genuine, as employer did not comply with award obligations and did not consult or provided information to him in writing – grounds of appeal were alleged procedural errors; non-compliance with consultation obligations; error in finding employer no longer required the role because of changes to operational requirements and failure to explore redeployment opportunities – Full Bench found Commission failed to address reference to the appellant’s ‘aggressive outburst’ in the 10 February 2017 letter from employer to appellant which also brought forward dismissal date – central to jurisdiction question of genuine redundancy – Full Bench considered letter and all related material – found bringing forward effective date of redundancy did not deprive dismissal of status of a genuine redundancy – Full Bench had identified an error relevant to a jurisdictional question that was before Commission – permission to appeal granted – Full Bench concluded Commission nonetheless reached the correct conclusion in relation to the error – appeal dismissed. Appeal by Law against decision of Wilson C of 9 August 2017 [[2017] FWC 3577] Re: Amalgamated Pest Control P/L t/a Amalgamated Pest Control
October 31, 2017
ENTERPRISE BARGAINING – majority support determination – ss.236, 237 Fair Work Act 2009 – application for majority support determination – site to be closed November 2017 – all employees likely to be made redundant – at least two employees engaged at site up until 15 December 2017 – Commission satisfied majority of employees wished to bargain – applicant submitted planned cessation of production not an obstacle to bargaining – referred to Top Cut – respondent submitted highly improbable statutory requirements making agreement could be met within timeframe imposed by close down – relied on CBI Constructors – respondent submitted no prospect of respondent obtaining meaningful productivity benefits and being compelled to bargain would be contrary to objects of FW Act – Commission found while prospects of securing new agreement may be low that does not mean it is unachievable – Commission not satisfied practical and legislative difficulties raised by employer sufficient in all circumstances to outweigh desire of employees to bargain -reasonable in all circumstances to issue determination – determination issued separately. National Union of Workers v Murray Goulburn Co-Operative Co Limited t/a Murray Goulburn
October 31, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed by National Union of Workers (NUW) as an organiser – applicant terminated for serious misconduct – accused of misappropriation of union funds through misuse of union credit card – Royal Commission into Trade Union Governance and Corruption heard evidence from applicant that he had misused credit card – applicant subsequently issued a show cause notice – show cause meeting adjourned owing to applicant’s illness – Branch Committee of Management (BCOM) proposed to deal with matter on the papers – no response received from applicant and applicant did not attend BCOM meeting – BCOM terminated applicant’s employment – applicant’s admission that he misused credit card constitutes valid reason for dismissal – Commission satisfied applicant informed of and given opportunity to respond to circumstances giving rise to the dismissal – Commission rejected applicant’s submission that he was unfit to deal with or respond to matters arising in show cause process – applicant’s repayment plan, poor state of NUW’s financial records and attitudes of former leadership of NUW considered by Commission – additional circumstances do not outweigh or excuse applicant’s conduct – Commission satisfied conduct was for valid reason – dismissal not harsh, unjust or unreasonable – application dismissed. Belan v National Union of Workers-New South Wales Branch
October 31, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – decision dealt with form of ‘shutdown’ term in Black Coal Mining Industry Award 2010 arising from review of annual leave provisions in modern awards more generally – decision to be read with previous Decision [[2017] FWCFB959](March decision) and Statement [[2017] FWC 2662] – annual leave dealt with by clause 25 of award – Commission determined model clauses in respect of excessive leave and granting leave in advance, which were adopted in award – Coal Mining Industry Employer Group (CMIEG) proposed revised shutdown clause including power to direct an employee to take accrued paid annual leave during a shutdown – Full Bench expressed provisional views as to the form of the revised shutdown provision – CFMEU, AMWU and APESMA (Unions) opposed amendment shutdown provision provisionally determined in March decision – Full Bench satisfied that revised draft clause was necessary to ensure that award achieved modern awards objective – satisfied that variation will promote flexible modern work practices and efficient and productive performance of work – award varied. 4 yearly review of modern awards-Annual leave-Black Coal Mining Industry Award 2010
October 31, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – decision deals with redrafting of a number of clauses in modern awards which have been identified as ‘standard clauses’ [see [2016] FWC 4756] – the standard clauses subject to plain language re-drafting are: A. Award flexibility; B. Consultation about major workplace change; C. Consultation about changes to rosters or hours of work; D. Dispute resolution; E. Termination of employment; F. Redundancy; G. Transfer to low paid job on redundancy; and H. Employee leaving during redundancy notice period – in decision issued on 28 August 2017 (the August decision) [[2017] FWCFB 4419] Full Bench finalised terms of most of standard clauses – issue arose as to whether clause E.1(c) of termination of employment standard term was a type of provision which may validly be included in a modern award and, if it was, whether such a provision was necessary to achieve modern awards objective – interested parties were invited to make submissions – variety of submission received – in consideration of whether clause E.1(c) was type of provision which may validly be included in a modern award the Full Bench expressed a number of provisional views regarding the amendment of clause E.1(c) and have sought further submissions – in the August decision the Full Bench invited further submissions regarding a revised version of standard clause G – the revised clause contained modifications to clauses G.1 and G.3 only, with clause G.2 having been finalised – submissions were made by the ACTU and the AMWU – standard clause G varied – directions will be issued in respect of the filing of submissions and the further hearing of this matter. 4 yearly review of modern awards – Plain language – standard clauses
October 31, 2017
INDUSTRIAL ACTION – order against industrial action – ss.418, 425 Fair Work Act 2009 – multiple applications – protected industrial action at ASC P/L – advanced stage of bargaining for replacement enterprise agreement – action being engaged in during access period and in lead-up to vote – appropriate to order cooling-off having regard to factors in s.425 – suspension order made – claim of unprotected industrial action – assertion by ASC P/L that CEPU not genuinely trying to reach agreements – orders sought under s.418 – conduct to date insufficient to warrant orders – unnecessary and contrary to public interest to make interim orders under s.420 – application adjourned. ASC P/L v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
