INDUSTRIAL ACTION – order against industrial action – suspension of protected industrial action – bargaining order – ss.229, 418, 425 Fair Work Act 2009 – multiple applications by ASC P/L (ASC) including application to stop unprotected action, application to suspend or terminate protected action and application for bargaining orders seeking orders against Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Electrical Energy and Services Division South Australian Branch (CEPU) – matters concerned operation of ‘ASC North’, responsible for submarine build and maintenance operations – employees at ASC North employed under ASC P/L Enterprise Agreement 2012-2015 (Agreement) – Agreement passed its nominal expiry date – since 23 February 2015, ASC negotiating with three unions for replacement Agreement: CEPU, Australian Manufacturing Workers Union (AMWU) and Australian Workers’ Union (AWU) – on 4 October 2017 ASC advised unions it was ‘unable to enhance the wage offer’ and that it would be ‘seeking to put the document out for another vote, possible opening the seven day Access Period as early as next week’ – members rejected employer’s wage offer and also acknowledged their earlier claim of Electrical Licence Allowance was lost – majority of CEPU members voted to recommence protected industrial action – on 6 October 2017, CEPU served ASC notice under s.414 of FW Act of intention to take industrial action in form of unlimited number of stop work meetings between 12 October and 8 November 2017 – notwithstanding this, ASC proceeding to conduct a vote on proposed Agreement on 19 and 20 October – statutory Access Period commenced on 11 October – ASC unsuccessfully tried to convince CEPU to withdraw intention to take industrial action during this Access Period – CEPU contended that its members were exercising lawful right to take protected industrial action in support of their bargaining position and that at all times its officials have acted in good faith – in relation to s.425 application to suspend protected industrial action, it objected on the basis that protected industrial action had not yet been ‘engaged in’ and accordingly, Commission had no power to exercise discretion to order suspension – Commission did not accept ASC’s submission that mere notification of an intention to take industrial action meant that industrial action was being engaged in or that the Notice itself was industrial action – Commission held that since stop work meetings have not been held as foreshadowed by the Notice, the precondition that industrial action is ‘being engaged in’ has not been met – therefore, Commission not required to find whether industrial action is or is not protected action – Commission held no order to be made – applications adjourned for further report. ASC P/L v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
October 24, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – applicant dismissed for reason of redundancy – Small Business Fair Dismissal Code does not apply in circumstances of redundancy – Commission noted that it is the job that is no longer required to be done, not the duties – Commission satisfied redundancy was for operational reasons – if an employer fails to consult and fails to do so there cannot be a genuine redundancy – Commission satisfied discussions commenced as early as reasonably practicable after making a definite decision about the redundancy of the Sales representative position – reasonableness of redeployment also needs to be considered – held it was clear there were no other positions available to which applicant could be redeployed – respondent provided two conflicting instructions about whether the applicant was required to work out the notice period – it is respondent’s role to ensure written and verbal communications were consistent – applicant not dismissed without notice but was not paid in lieu of notice – Commission found dismissal was a case of genuine redundancy – application dismissed. McDonald v Chelsea Flooring P/L t/a Chelsea Flooring
October 24, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for an unfair dismissal remedy – respondent submitted applicant had been stood down and not dismissed – Commission considered conduct of respondent and found that respondent dismissed applicant by removing applicant form work site and not providing applicant with further work – satisfied respondent is small business and Small Business Fair Dismissal Code (Code) applies – Commission considered Yaraka Holdings as to whether applicant was regular and systematic – Commission considered MacMahon Mining Services and determined on balance employment arrangement beyond that of casual employment – found applicant dismissed after making request to have time off for scheduled day surgery in context where applicant had many absences within preceding 12 month period – not satisfied that dismissal was consistent with Code – found request to take time off for surgery in context of applicant’s absences not a valid reason for dismissal – found dismissal was unreasonable and harsh – parties provided with seven days from date of decision to file written submissions regarding remedies. Wingate v Causeway Holdings P/L t/a Western Forklift Services
October 24, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute in accordance with the Dendrobium Mine Enterprise Agreement 2015 – dispute regarding personal leave entitlement – respondent agreed to resolve the matter and pay the employee in accordance with the primary remedy sought – CFMEU argued that the parties remained in dispute about the operation of clause 13 of the Agreement and the dispute was still very much alive – respondent submitted that the matters in dispute were significantly different to dispute and relief sought in original application – argued that the relief sought by CFMEU amounted to declarative relief which had not been raised prior to the hearing – contended the Commission would be acting beyond the power afforded to it under clause 6 of the Agreement in dealing with the matter – respondent argued that it was not appropriate for the application to be used as a vehicle to pursue broader industrial issues relating to the operation of clause 13 or disputes relating to other members – Commission found that dispute was confined to the particular circumstances of the employee and his entitlement to be paid particular shifts on specific dates – Commission was persuaded by respondent’s submission that there was a fundamental natural justice consideration in not dealing with a dispute in circumstances where it has changed significantly from the dispute described and the relief sought in the application – found that as respondent agreed to pay the disputed shifts, dispute was resolved – noted there was nothing preventing CFMEU from making a further application if any dispute remained unresolved. Construction, Forestry, Mining and Energy Union v Dendrobium Coal P/L
October 24, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application by The Australian Workers’ Union (AWU) to deal with dispute in accordance with dispute settlement procedure in The Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014 (Agreement) – dispute concerned Alcoa’s decision to dismiss Mr Linning following allegation that he intentionally damaged a Collision Avoidance System (CAS) screen, amounting to serious misconduct – application concerned dispute in relation to interpretation and application of clause 18 of Agreement – clause 18 of Agreement contained disciplinary procedure and imposed obligation on Alcoa to apply and implement all disciplinary action in a ‘fair and reasonable manner’ – Commission held it was not fair and reasonable for Alcoa to conclude that Mr Linning was responsible for any or all of the damage to CAS Screen or CAS Mount or, to extent that he did damage the CAS, that it occurred in circumstances which could only have constituted misconduct warranting dismissal. The Australian Workers’ Union v Alcoa of Australia Limited t/a Alcoa World Alumina Australia
October 24, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant had food poisoning and sent text message saying he couldn’t make it to work – respondent said they sent messages to applicant regarding attendance with no response – applicant summarily dismissed – Commission held dismissal due to applicant’s non – attendance at work on two days – parties agreed applicant did not appear at work and there was no contact from him for 24 hours – respondent believed conduct serious and justified immediate dismissal – Commission not satisfied respondent had reasonable grounds to hold such belief – held respondent did not comply with Small Business Fair Dismissal Code – no evidence of applicant’s poor attendance record – occurrence of illness preventing employee from attending work contemplated by FW Act and modern awards – in the circumstances Commission held respondent did not have valid reason for dismissal – applicant not afforded procedural fairness throughout dismissal process – held respondent’s disproportionate response to conduct and applicant’s inability to secure permanent employment at similar pay rate after dismissal relevant considerations – dismissal unfair – reinstatement inappropriate – parties to make submissions on matter of compensation. Nicolaou v Architectural Projects Specialists
October 24, 2017
CASE PROCEDURES – confidentiality – ss.398, 399 Fair Work Act 2009 – original unfair dismissal application heard by way of private conference – decision delivered in transcript – order dismissing application issued – decision dealing with issue of publishing reasons and making transcript available publicly – Commission directed transcript be made publicly available – principles of open justice – UFU v MFB – accessible and efficient procedures to resolve disputes need not be private and confidential. Rigby v BMS Retail Group P/L
October 24, 2017
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision to grant extension of time for unfair dismissal remedy – at first instance Commission found exceptional circumstances for 164 day delay – eight grounds of appeal set out – Full Bench found appealable errors – Commission failed to take into account relevant considerations – allowed irrelevant matters to guide decision that exceptional circumstances existed – decision enlivens public interest – decision is disharmonious with other recent decisions – permission to appeal granted – substantive appeal to be heard. Appeal by Woolworths Limited against decision of Wilson C of 2 August 2017 [[2017] FWC 4019] Re: Lin
