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
October 31, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant alleged she was unfairly dismissed by respondent – respondent submitted applicant was not dismissed but resigned – applicant applied for extended annual leave which respondent initially granted and had an overseas holiday booked and paid for – respondent then revoked leave approval – applicant submitted she was forced to resign under duress as respondent placed her in an impossible position – Commission accepted that applicant resigned under burden of immense pressure – Fitzgerald considered – Commission found applicants resignation was not forced by conduct of respondent – applicant not dismissed – application dismissed. Bengel v Gloss Accessories P/L t/a Gloss Accessories
