RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application by Victorian Branch of AMWU for a right of entry permit (permit) for an official – permit issued on 18 September 2014 and initially returned on 11 August 2017 – AMWU wrote inquiring if the permit could be returned to him as it did not expire until 19 September 2017 – permit made available for collection – through annual leave and administrative oversight there was a lack of communication that permit was available for collection – Commission noted relevant statutory provisions and application – considered MUA decision of Full Court of Federal Court of Australia re ‘fit and proper person’ – also CEPU decision of Hatcher VP – declarations filed by AMWU – Commission accepted disclosed information in the declarations as accurate and correct – found to be a fit and proper person to hold permit – no relevant matters nor cogent evidence of any relevant matter which account should be taken – application granted – permit will be issued. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) – Victorian Branch
October 17, 2017
GENERAL PROTECTIONS – extension of time – date dismissal took effect – ss.365, 366 Fair Work Act 2009 – general protections application involving dismissal lodged 43 days after the date the dismissal took effect – considered whether exceptional circumstances existed to justify granting an extension of time – applicant took action to make an application within the permitted period, albeit on the wrong form – in finding the error in the application, applicant took steps to file the correct application – no prejudice to respondent caused by the delay as applicant had made a substantial response to the initial application which was similar to the late application – merits of the application a neutral factor – fairness not a relevant consideration as there were no employees in the same situation as the application – found exceptional circumstances existed – extension of time granted. Smith v A&J Container Services
October 17, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed from 21 March 2016 until termination on 17 May 2017 – applicant employed by respondent and chair of the board for Nyangatjatjara Aboriginal Corporation (NAC) – respondent wholly owned subsidiary of NAC – applicant commenced absence from work due to stress in November 2016 and made a claim for workers’ compensation, which has been denied – report handed down to the NAC board in January 2017 provided a list of persons who may have a conflict of interest including the applicant – in February 2017 the respondent adopted a policy that no employee could be a board member of the NAC – this document was provided to the applicant – applicant was provided with decline of 1 March 2017 to respond – no response in relation to applicant’s board membership was received – respondent wrote to applicant on 5 May 2017 providing applicant till 8 May 2017 to provide a response, when a decision was to be made in relation to his employment – on 17 May 2017 respondent wrote to applicant terminating his employment – Commission determined applicant’s employment was terminated due to failure to follow lawful and reasonable direction in relation to his employment – Commission satisfied applicant did disregard lawful and reasonable direction given – satisfied reason for dismissal was valid – applicant argued dismissal in breach of obligation of respondent under Return To Work Act (NT) – Commission satisfied respondent was not in breach – Commission satisfied dismissal was not harsh, unjust or unreasonable – application dismissed. Thomas v Wana Ungkunytja P/L t/a Anangu Jobs
October 17, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – ss.382, 394 Fair Work Act 2009 – application for an unfair dismissal remedy – respondent submitted that applicant’s employment did not meet the minimum employment period of 6 months and therefore applicant was not protected from unfair dismissal – applicant performed unpaid practical legal training (PLT) with respondent between 5 August 2016 and 14 October 2016 – applicant accepted offer of formal employment from respondent on 20 October 2016 – applicant dismissed 23 weeks and 5 days after commencement of formal employment, two weeks and two days shy of minimum employment period – applicant submitted that period between 28 September 2016 and 14 October 2016 counted towards minimum employment period as the nature of the work he performed could not be characterised as work experience – Commission considered whether the PLT arrangement between the applicant and respondent involved the creation of an employment contract – considered the reasons for the arrangement, the length of time of the PLT, the work completed by the applicant and who was getting the benefit of that work – Commission not satisfied that any part of PLT counted as an employment relationship between applicant and respondent – found applicant not protected from unfair dismissal – application dismissed. Klievens v Cappello Rowe Lawyers
October 17, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.386, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant did not attend work after a period of annual leave – respondent expressed dissatisfaction about applicant failing to return on time among other issues – applicant submitted that respondent terminated his employment – respondent denies this and submitted that he advised applicant to attend work site – applicant attended work site but subsequently ceased working – applicant submitted that he was unfairly dismissed and sought reinstatement or compensation – respondent submitted that applicant was not dismissed and there was an expectation that he would continue to work – Commission found irreconcilable differences in version of conversation – found that although there may have been mention of redundancy or that employment relationship may end at some time in the future, it was clear from text message exchanges that applicant was employed and expected to continue to work – found nothing in the conduct of respondent could be described as action by the employer that either intended to bring the employment relationship to an end or had that probable result – satisfied that applicant was not terminated on the respondent’s initiative – not satisfied that applicant was dismissed – application dismissed. De Maria v BiltBeta Constructions
October 17, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was employed by respondent as a technical support consultant – terminated following a number of allegations of sexual harassment – Commission examined each allegation – found applicant engaged in an inappropriate pattern of behaviour in the workplace – satisfied there was a valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed. Tanyi v Foxtel Management P/L t/a Foxtel
October 17, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – permission to appeal – Full Bench – decision at first instance found that Commission did not have jurisdiction to deal with a dispute submitted under clause 10 of the MC Labour Services P/L and the CFMEU (Victorian Construction and General Division) Labour Hire Industry Enterprise Agreement 2016-2018 (Agreement) – GlaxoSmithKline applied regarding considerations that may attract the public interest when deciding whether or not to grant permission to appeal – Commission satisfied that divergence of views exists in decisions of the Commission regarding its jurisdiction in dealing with a matter referred to it under a dispute settlement procedure in an enterprise agreement – Commission satisfied it was in public interest to grant appeal – permission to appeal granted – found Commissioner’s conclusion she had no jurisdiction to deal with the dispute took into account, and was consistent with, the legislative framework – found that s.186(6) of the Fair Work Act does not mandate an unconditional or universal role for the Commission or other independent person in the settlement of disputes arising under an agreement – found s.739 of the Fair Work Act applied if a term of an enterprise agreement ‘requires or allows’ the Commission to deal with a dispute – the resolution of a disputed construction to begin with the ordinary meaning of the relevant words, considered in context, in accordance with the principles summarised in AMWU v Berri – found that clause 10.4 of the enterprise agreement set pre-conditions for the capacity of the Commission to deal with a dispute and those pre-conditions were not met – found that there is no general discretion afforded to the Commission under the Fair Work Act to deal with a dispute under an enterprise agreement – found that the enterprise agreement affords no such discretion – appeal dismissed. Appeal by The Australian Workers’ Union against decision of McKinnon C of 3 August 2017 [[2017] FWC 4075] Re: MC Labour Services P/L
October 17, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – s.394 Fair Work Act 2009 – applicant, a casual employee, claimed unfair dismissal by respondent, a labour hire company – applicant left work placement early but did not tell employer or respondent – claimed respondent terminated their employment over telephone – no termination of employment found as applicant remained on respondent’s database and respondent still continued to try and source work for applicant – application dismissed. Gavin v Jugiter P/L t/a Torque Recruitment Group
