TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission found Farstad had a valid reason for the dismissal of Mr Rust for failing a random alcohol test, however it found that the dismissal was harsh and thus unfair – Commission concluded that an order for reinstatement was not appropriate, so the issue of an order for compensation was yet to have been decided – Farstad appeal – grounds for Farstad appeal included that the Commission erred in failing to take into account (or to give sufficient weight to) a relevant consideration: being Captain Rust’s decision to not self – report and to present as fit for work under the drug and alcohol policies; and breaches of Farstad’s applicable drug and alcohol policies arising from his failure to report taking prescription medication between 2014 and 2016 – Full Bench found there was an injustice sufficient to enliven the public interest and granted Farstad permission to appeal – Full Bench found that appealable error had been made and held that the two identified grounds were made out – that there had been an error in the exercise of the Commission’s discretion – that it would be unsafe to allow the Decision to stand – Farstad appeal upheld – decision at first instance quashed – matter remitted to Clancy DP for rehearing – Rust appeal – grounds for Rust appeal was that the Commission determined that an order for reinstatement was not appropriate – Full Bench found Rust appeal moot in light of outcome in Farstad appeal – permission to appeal refused. Appeal by Farstad Shipping (Indian Pacific) P/L t/a Farstad against decision of Bissett C of 5 July 2017 [[2017] FWC 3426] Re: Rust; Cross appeal by Rust
October 24, 2017
TERMINATION OF EMPLOYMENT – performance – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission found appellant’s dismissal one week into a six week performance improvement plan was not unfair – appellant contended permission to appeal justified because it was in the public interest to correct a manifest injustice and outcome which was counterintuitive – test for permission to appeal a ‘stringent one’ [Coal & Allied] – rarely appropriate to grant permission to appeal unless an arguable case of appealable error demonstrated – Full Bench considered outcome was counterintuitive and engaged the public interest – held Commission at first instance failed to take into account that consistency of evidence of two witnesses may have been impacted – arguable case that Commission at first instance did not take a number of facts into account resulting in a significant error of fact – arguable case of error made out in relation to three appeal grounds – permission to appeal granted – substantive appeal to be heard. Appeal by Etienne against decision of Binet DP of 25 May 2017 [[2017] FWC 1637] Re: FMG Personnel Services P/L
October 24, 2017
ENTERPRISE AGREEMENTS – approval – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to approve Pennyco Pty Ltd T/A Zarraffas West Ipswich 2016 EBA (the Agreement) – Agreement lodged for approval on 26 September 2016 – bargaining representative for employer listed as ‘Platinum ER P/L’ (Platinum) – application signed by Michael Corrigan of Platinum – accompanying statutory declaration (F17) stated employees were given draft Agreement to read, that consultation meeting occurred and that employees were given 14 days to read final document – F17 further stated that voting by secret ballot took place and that, of eight employees, seven cast a valid vote and seven employees voted to approve the Agreement – F17 signed by Scott Penrose, Director of employer – Agreement signed by Scott Penrose on behalf of employer, and by Nicole Penrose on behalf of the employees – Mr Corrigan appeared for the employer at the approval hearing – Mr Corrigan explained that the Agreement provides for a reconciliation of an employee’s pay to be performed on an annual basis against the relevant award – Agreement approved by Commission – email sent by lawyers for employer on 23 January 2017 to Commission explained that F17 had contained incorrect information, and that employer had no employees at time of approval and that no vote on Agreement had taken place – lawyers for employer stated that Platinum had provided F17 to Scott Penrose and that he had signed it without properly reading its contents – lawyers for employer stated that Mr Corrigan never explained agreement approval process with Scott Penrose – appeal lodged against approval of Agreement on grounds that two material factual considerations were not taken into account: employer had no employees; Agreement does not pass the BOOT – Scott Penrose and Nicole Penrose submitted that they were told by Mr Corrigan to simply complete the address section of the F17 and sign it in the presence of a JP, before returning it to Mr Corrigan to lodge – Scott Penrose submitted that he assumed the F17 contained factually correct information – Mr Corrigan submitted he had told Scott Penrose about the requirements for voting on the Agreement, and that he assumed Scott Penrose would have followed his instructions – Mr Corrigan submitted he did not know the F17 contained incorrect information – appeal filed outside 21 day period – length of and reason for delay relevant, as well as nature of grounds of appeal and any prejudice to respondent [Jobs Australia v Eland] – no satisfactory explanation for delay – correspondence with Commission occurred approximately six months prior to appeal being lodged – absence of explanation outweighed by public interest in granting permission to appeal, and overwhelming merits of appeal – extension of time granted – permission to appeal granted – appeal upheld – Decision approving Agreement quashed – matter referred to Australian Federal Police for investigation as to whether any criminal offence has been committed. Appeal by Pennyco P/L t/a Zarraffas West Ipswich against decision of Sams DP of 18 October 2016 [[2016] FWCA 7494]
October 24, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – 4 yearly review of the Supported Employment Services Award 2010 – application by Health Services Union (HSU) and United Voice to vary Award by removing all wage assessment tools except for Supported Wage System (SWS) – Award applied to employers and employees in Australian Disability Enterprise (ADE) – conciliation conducted amongst multiple parties, a number of disability advocacy representatives, managers from individual ADEs and representatives of parents and carers – HSU and United Voice discontinued application to pursue balance of their claims in Award Review – parties agreed to further variation to Award amending Schedule D, which sets out parameters for implementation of SWS in an ADE – parties have agreed to a number of modifications to those parameters – Full Bench satisfied that the variation to Award is appropriate and consistent with modern awards objective – variation to take effect from 17 October 2017. Supported Employment Services Award 2010
October 24, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – original decision concerned calculation of accrued long service leave (LSL) under Clause 15 of the Endeavour Energy Enterprise Agreement 2012 (Agreement) – no dispute re accrual of LSL on weekly basis rather than hourly basis – at issue was the LSL accrued when Mr McWhirter worked 36 hour weeks being paid as 36 hour weeks instead of all LSL being paid on basis of 40 hour week – Agreement provided for a right of appeal [Silcar] and decision was attended with sufficient doubt to warrant its reconsideration [GlaxoSmithKline Australia] – permission to appeal granted – Full Bench identified question to answer was whether the interpretation of the Agreement adopted by the Commission was correct – appellants contended the Commission erred in not accepting their construction of clause 15 of Agreement and clause 14 of the Workplace Arrangement (Arrangement) that LSL accrued based on length of service, and the reference to hours in clause 15 are indicative only, not part of the formula for calculating LSL accrual – Full Bench found clause 15 of the Agreement entitled employees to weeks of leave based on their current working arrangements and clause 14 of the Arrangement only created ‘an entitlement to take a certain number of weeks’ leave after a particular period of service’ – Full Bench found demonstrated error in the Commission’s interpretation of the LSL provisions of the Agreement – appeal upheld – decision quashed – Full Bench determined the payment for the ’36 hour per week period’ be paid at the applicable weekly rate of pay, being a 40 hour week. Appeal by McWhirter and Anor against decision of Dean DP of 21 June 2017[[2017] FWC 57] Re: Endeavour Energy Network Management P/L
October 24, 2017
ENTERPRISE AGREEMENTS – workplace determination – s.266 Fair Work Act 2009 – Full Bench – previously, two decisions dealing with objections to aspects of submissions and evidentiary material filed by Commonwealth of Australia represented by the Department of Immigration and Border Protection (DIBP) and the Community and Public Sector Union (CPSU) – Full Bench in first decision [[2017] FWCFB 4200] determined that all disputed material coming within definition of ‘proceedings in Parliament’ as set out in s.16(2) of Parliamentary Privileges Act 1987 (PP Act) and Budget documents which DIBP sought to tender were protected by Parliamentary privilege and incapable of being received by Commission – Full Bench in second decision [[2017] FWCFB 4577] determined not to admit a number of paragraphs from CPSU witness, Mr Rupert Evans’ witness statement, on basis that paragraphs irrelevant – new Directions revised on 1 September 2017 – in accordance with revised Directions, DIBP filed further witness statements by Mr Venugopal and Mr Groves – CPSU and Ms Ryan, employee bargaining representative for proposed Agreement, raised number of objections to witness statements on grounds that elements were protected by Parliamentary privilege and on the basis of hearsay and relevance – CPSU objected to Mr Groves’ third witness statement in its entirety – Ms Ryan objected to Attachment MV-20 of Mr Venugopal’s third witness statement – Full Bench’s analysis of disputed material supported finding that submissions and evidence not protected by Parliamentary privilege and therefore can be admitted – objections dismissed – Mr Groves’ third witness statement admitted in its entirety – Attachment MV-20 to Mr Venugopal’s third witness statement admitted. Commonwealth of Australia represented by the Department of Immigration and Border Protection
October 24, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – disputes on appeal concerned correct interpretation of Appendix 2 in UGL Operations and Maintenance P/L Ichthys Onshore Construction Greenfields Agreement and in Kentz P/L Ichthys Onshore Construction Greenfields Agreement, the terms of which are identical – decision at first instance held that agreements in question enabled an affected employee to remain onsite during inclement weather – did not allow employer to direct employees not engaged in active work to leave site (where particular criteria are met) – also held that employer is required to pay an affected employee for their scheduled work where the employee exercises the option to stay – Full Bench held that matters are of importance and general application to work on the Ichthys project and in the public interest – permission to appeal granted – grounds of appeal included incorrectly interpreting meaning of Appendix 2 in each agreement and erring in law at paragraphs [56] and [57] of decision – also erring by answering questions posed for arbitration incorrectly – Full Bench found that Commission correctly interpreted Appendix 2 of each agreement – did not consider that Commission erred by relying on extraneous matters or that observations in paragraph [56] or [57] of the decision or otherwise disclose error – did not agree that the construction adopted by the Commission was unreasonable or that the questions posed for arbitration were answered incorrectly – concluded that Commission’s interpretation of Appendix 2 of each agreement was correct – did not identify any error in decision – appeal dismissed. Appeal by UGL Operations and Maintenance P/L and Anor against decision of Simpson C of 9 June 2017 [[2017] FWC 2950] Re: “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
October 24, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as roof plumber – dismissed for working for competitor on days he called in sick – respondent questioned legitimacy of sick day based on social media post, eyewitness accounts and video evidence – applicant denied allegations – unclear from photographic evidence that applicant was depicted – Commission not satisfied applicant worked for competitor on sick day – Byrne considered – Commission satisfied dismissal was harsh, unjust or unreasonable – dismissal was unfair – applicant to file details of remuneration prior to Commission assessing compensation. Di Gioacchino v Kmercial Contractors P/L
