TERMINATION OF EMPLOYMENT – genuine redundancy – ss.394, 386 Fair Work Act 2009 – application for relief from unfair dismissal – Commission considered whether job no longer required to be performed by anyone because of operational requirements – evidence of operational changes which were necessary to maintain ongoing viability of business – considered Ulan Coal Mines Commission satisfied respondent no longer required applicant’s role to be performed – no evidence of redundancy being a ‘smokescreen’ to cover unfair dismissal – considered obligation to consult – applicant not covered by a modern award or enterprise agreement – Commission satisfied redundancy was a genuine redundancy – application dismissed. D’Alessandro v Gallery Homes P/L t/a Gallery Homes
October 31, 2017
RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application for right of entry permit – permit qualification matters under s.513 considered – applicant disclosed one matter – previously found guilty of contempt and ordered to pay a fine of $20,000 – Commission considered disclosure not to be sufficient to disqualify applicant from holding an entry permit – satisfied applicant has held permits consistently since at least 2003 – no evidence to suggest applicant has acted in a manner inconsistent with obligations under the FW Act – significant passage of time between applicant’s previous conduct and current application being made – applicant a fit and proper person – entry permit issued. Construction, Forestry, Mining and Energy Union
October 31, 2017
CASE PROCEDURES – representation – ss.394, 596, 601 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission found the appellant had not been dismissed and dismissed the appellant’s unfair dismissal application – Woolworths jurisdictional objection on basis that the appellant had voluntarily resigned from his employment – initially listed for hearing on 29 May 2017 on the question of whether permission to appeal should be granted only – after hearing from the parties the Full Bench determined that one contention of appealable error in the appeal was arguable and raised an issue of general importance such that it would be in the public interest to grant permission to appeal – considered appeal grounds that appellant was misled by Commission regarding respondent’s legal representation and that there was misrepresentation and deceit relating to legal representation – Woolworths lawyer attended but did not seek permission and did not engage in oral advocacy – considered ss.596 and 609 FW Act and FW Rules 11 and 12 regarding representation – Warrell and NSW Bar Association considered – neither decision dealt with scope of representation under s.596 – concept of ‘appearing’ for party in legal proceedings not unambiguous – apparent under ss.596 and 609 that ‘representation’ under s.596 is more than just advocacy at hearing – considered Australian Bar Association’s Barristers’ Conduct Rules – suggests ‘represented’ in s.596 not confined to appearing as an advocate – suggests ‘in a matter’ in s.596 not confined to hearing – s.596(1)(b) expressly provides representation includes making an application or submission’ to Commission – matters indicates ‘submission’ includes ‘written submission’ – Full Bench concluded s.596 not confined to permission for courtroom advocacy, and appears to have been drafted in a way that is deliberately distinct from predecessor legislation – clause intended beyond doubt that all aspects of representation in connection with matter were to be encompassed – on evidence related to cost application, Woolworths represented from at least early February 2017 by corresponding with Commission and making written submissions – Woolworths should have filed notice of representation commencing to act but not required to obtain permission for those activities prior to hearing because of FW Rule 12(3) exception – Woolworths billed for attendance at hearing – considered how lawyer could attend and provide legal services without representing client under s.596 – Commission rejected lawyer not acting as a representative based on Curtin and McKenzie – Commission erred in proceeding on basis that permission not required under s.596(2) merely because representative was not engaged in oral argument – alternatively, Commission erred by formally refusing permission whilst still allowing lawyer to engage in what Full Bench found to be legal representation at hearing – appellant did not identify any prejudice to him resulting from representation – Woolworths’ jurisdictional objection had overwhelming merit, and Full bench could not identify any reasonable possibility that different ruling on representation could have led to different outcome – appeal dismissed. Appeal by Fitzgerald against decision of Cambridge C of 5 April 2017 [[2017] FWC 1730] Re: Woolworths Limited
October 31, 2017
TERMINATION OF EMPLOYMENT – discontinuance – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – recorded on electronic Commission file that parties reached settlement agreement following conference – parties notified Commissioner accepted applicant’s verbal discontinuance – applicant contacted chambers advising that respondent sought to introduce new terms to settlement agreement and requested matter proceed to hearing – applicant denied that he verbally discontinued matter at conference – submitted Commission has jurisdiction to amend or correct the error – Commission considered whether discontinuance could be set aside – notice of discontinuance can be set aside if filed by mistake or under duress however doubt that such a power may be exercised by the Commission [AB v Tabcorp] – found Commission has no jurisdiction to grant application to set aside discontinuance – determined that applicant’s application has no reasonable prospects of success – open to applicant to apply to a court to set aside discontinuance in light of AB v Tabcorp or to file a new unfair dismissal application – application dismissed. Le v RBA Architects and Conservation Consultants P/L
October 31, 2017
ANTI-BULLYING – likely to continue – s.789FC Fair Work Act 2009 – application for an order to stop bullying – applicant alleged she had been bullied at work by Ms Kotsiris, who is employed by Jo Mercer, collectively referred to as the ‘respondents’ – applicant resigned her employment during period of unpaid leave – respondents subsequently made application to Commission to dismiss applicant’s anti-bullying application on basis that application had no reasonable prospects of success due to applicant’s resignation – respondents submitted Commission cannot be satisfied applicant was at risk of being bullied at work as she was no longer employed by Jo Mercer – applicant submitted she had been forced to resign, was seeking reinstatement and her anti-bullying application should be put on hold pending outcome of dismissal application – Shaw, Re G.C., Obatoki, Atkinson and Willis considered – Commission found as applicant no longer employed at Jo Mercer, it could not be concluded that there was a risk she would continue to be bullied at work – Commission does not have power to make order – satisfied application had no reasonable prospect of success – should applicant succeed in securing reinstatement through her unfair dismissal application, applicant will be free to make another anti-bullying application – Commission granted respondent’s application on basis of no reasonable prospect of success – application dismissed. Resta v Jo Mercer and Anor
October 31, 2017
RIGHT OF ENTRY – suspension of permit – s.510 Fair Work Act 2009 – whether to suspend or revoke Mr Muhammed Kalem’s entry permit – Mr Kalem an official and organiser employed by the Construction, Forestry, Mining and Energy Union (CFMEU) – a holder of right of entry permit issued on 14 April 2016 with expiry date 14 April 2019 – in Director of the Fair Work Building Industry Inspectorate v CFMEU (Penalty Decision), Federal Court declared Mr Kalem contravened s.500 of FW Act and ordered he pay pecuniary penalty of $1,500 – on 2 May 2016, the Commission initiated consideration of whether Mr Kalem’s permit should be revoked or suspended – Parker and Ors considered – Commission accepted that Mr Kalem was now contrite and unlikely to engage in contravening conduct again – accepted that some time had passed since contravening conduct and that Mr Kalem has since not engaged in any relevant contravening conduct – accepted that contravention occurred only a few months after Mr Kalem commenced employment with CMFEU and so his inexperience or naivety was likely to have contributed to his conduct – however, Commission considered some of Mr Kalem’s answers given during cross-examination not a positive understanding of his wrongdoing or on his rights and obligations as permit holder – further, Commission considered nature and gravity of contravening conduct and impact of the contraventions, weighing strongly against Mr Kalem – Commission not persuaded it would be unreasonable to suspend entry permit – permit suspended for period of three months. Kalem
October 31, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application filed by Australasian Meat industry Employees’ Union (applicant) to address concerns on the interpretation of clause 3.7 of the Woolworths Limited – Brismeat, Queensland and the Australasian Meat Industry Employees’ Union Agreement 2011 (the Agreement) – concerned if overweight allowance payable on all forms of approved absences from work – referred to modified principles of enterprise agreement interpretation imbedded in Berri – contention whether words used ambiguous, uncertain or capable of more than one meaning – respondent found relevant clause was ambiguous and unclear – form of extrinsic material admissible to aid interpretation of the Agreement – believed business records, minutes of bargaining meetings for 2011 Agreement, were accurate account of matters discussed – Commission held minutes were an objective account of the outcome of discussions as to the Agreement of the negotiating parties – respondent stated no intention to apply meaning of words as contended by the Union – Commission found overweight allowances do not apply to all forms of authorised absences, except for personal leave and jury duty – pro rata absences recognised – noted if such leave is taken for less than the full week then entitlement to pro rata overweight payments for the days employees at work – dispute resolved and determined. Australasian Meat Industry Employees’ Union, The v Brismeat Queensland (Woolworths Limited) t/a Brismeat
October 31, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.595, 739 Fair Work Act 2009 – application to deal with a dispute in accordance with the Serco Defence Maritime Collective Agreement 2015 (the Agreement) – dispute regarding parity of rates between Master and Engineers – written guarantee provided 6 months after agreement approved providing for Masters and Engineers to be paid equally when employed on the same vessel – respondent raised objection to Commission determining matter – Berri principles considered – principles from CFMEU v Mt Arthur Coal P/L adopted – Commission needed to determine if written guarantee covered by clause 26.1 of the Agreement – determined it is not covered by the dispute resolution clause – the Agreement does not contain an express provision which would provide grounds for the Commission to find the dispute is about a matter arising under the Agreement – Commission concluded no power to make order sought by the applicant – Commission recommended Serco take all necessary steps to ensure undertaking is honoured for life of Agreement. The Australian Maritime Officers’ Union v DMS Maritime P/L t/a Serco Defence
