ENTERPRISE BARGAINING – majority support determination – s.236 Fair Work Act 2009 – CFMEU application lodged in September was accompanied by petitions signed by 10 employees – 7 employees signed a petition in April and 3 further employees signed a petition in June – Commission must be satisfied that a majority of employees who are employed at a time determined by the Commission and who will be covered by the Agreement want to bargain – lapse in time since signing petition and uncertainty over total number of employees meant Commission could not be satisfied that there was a majority of employees in support of bargaining – CFMEU submitted the FWC should conduct a ballot – further hearing listed. Construction, Forestry, Mining and Energy Union
October 6, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – in September 2016 the respondent developed concerns about the applicant’s workplace behaviour and conduct – on 30 March 2017 respondent was presented with allegations made against applicant by four employees – allegations involved two separate but similar incidents – incidents related to applicant’s indecent exposure in workplace – respondent immediately suspended the applicant from work with pay whilst it conducted an investigation into the allegations – following the investigation respondent concluded that applicant had engaged in serious misconduct – respondent provided applicant with a letter of dismissal – Commission confirmed the findings of serious misconduct made by the respondent against the applicant represented a valid reason for summary dismissal – found respondent conducted a fair, thorough and balanced investigation into the serious allegations made against applicant – found the dismissal of the applicant was not harsh, unjust or unreasonable – applicant’s claim for unfair dismissal remedy was dismissed. Maciel v Lynch Admin Services P/T t/a Lynch Group
October 6, 2017
INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application for an order to stop industrial action on the grounds that industrial action was not protected industrial action because it was not authorised in accordance with s.459 FW Act – Commission considered whether industrial action occurred outside the 30 day authorisation period – found notice to commence industrial action on 22 September 2017 that is not otherwise authorised cannot be authorised and any action taken pursuant to such a notice is therefore not protected industrial action – United Collieries considered – applied Health Imaging Services P/L v Health Services Union – found that Question 1 in the action ballot was characterised as a range of options for stoppages that may or may not be taken and the authorisation of one of the options for a stoppage of work does not authorise all of the options contained in that question – Commission not satisfied that there was authorisation for 24 hour stoppage of work as action was to commence outside extended 60 day period – found that the stoppages already taken of one hour duration do not provide the authorisation for a 24 hour stoppage – found proposed industrial action would not be protected industrial action – satisfied that the industrial action was being organised – application for Order stopping industrial action granted. James Cook University v National Tertiary Education Industry Union
October 6, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute relating to applicant’s appropriate classification under enterprise agreement – Berri considered – satisfied parties making agreement knew of history of agreement provisions from earlier agreements and awards – also satisfied parties were aware of relevant law and regulations that apply in the sector – satisfied Commission may have regard to history of provisions and relevant law and regulations to assist determining if ambiguity or uncertainty exists – provision must be considered in context of agreement as a whole – even if regard is not had to the history of classification, clause and its implications suggests uncertainty and ambiguity in relevant classifications – agreement does not have plain meaning when read in context – satisfied that objective background facts support finding that agreement is uncertain and ambiguous in relation to relevant classifications – not satisfied ambiguity resolved when definition of Children’s Services Employees considered – satisfied intent of agreement is that Assistant Children’s Services Employee should be classified at Class 2 – conclusions as to uncertainty and intent of agreement supported by (but not based on) classification descriptions in modern award and finalisation of replacement agreement which clarifies distinction between relevant classifications – applicant has no claim to be classified as Class 3 based on provisions of agreement in question – this is not to say applicant might not have claim to be classified as such on some other basis – application dismissed. Grey v Melbourne City Council t/a North Melbourne Children’s Centre
October 6, 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 FW Act considered – applicant disclosed two matters that fall within category of offences in s.513(1)(c)(i) and (ii) – a conviction of common assault and stalking/intimidation from 2007 and a conviction of three counts of obtaining money by deception from 2009 – applicant also disclosed two driving offences matters which were considered for purposes of s.513(1)(g) – Commission satisfied there was a considerable passage of time since applicant’s convictions – applicant showed contrition for his actions and made changes to his life – satisfied applicant a fit and proper person – entry permit issued. Construction, Forestry, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch
October 6, 2017
CASE PROCEDURES – appeals – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – unfair dismissal application dismissed at first instance – found appellant’s actions breached company procedures – valid reason for dismissal – three principal grounds of appeal – matters relating to third warning, details of collision and that Commission mischaracterised appellant’s evidence in cross-examination – Full Bench did not consider appellant established arguable case of error in relation to treatment of third warning and conduct to which it related – did not consider appellant’s contentions established that conclusions in relation to facts of collision were erroneous – arguable case that Commission erred in finding appellant made ‘different submissions’, or ‘inconsistent’ submissions; however, not considered a significant error of fact for purposes of s.400(2) – Full Bench did not consider this plausibly affected the outcome of decision at first instance – no arguable case of error – not satisfied in public interest to grant permission to appeal – permission to appeal refused. Appeal by Hill against decision of Spencer C of 18 May 2017 [[2017] FWC 1952] Re: Peabody Energy Australia PCI P/L
October 5, 2017
Twenty-two labour dispute applications are lined up for hearing in the Fair Work Commission today. The full list is: Wrightville Operations Pty Ltd (Hatibovich), Aus Water & Gas Pty Ltd (Simounds), RSL Care Limited (Gwak), R J Dingle (Dingle), The Heran Building Group Pty Ltd (Nieberg), Lutheran Church of Australia Queensland District (Bos), The Commonwealth of Australia (Department of Immigration and Border Protection) (Gibbens), Amalgamated Pest Control Pty Ltd (Law), Elmo Software Limited (Pettit), Australian Super Pty Ltd (Lim), Goodyear & Dunlop Tyres (Aust) Pty Ltd & Hamilton and Others (Andrade), New Leaf Developments (Sim), Alcami Managed Services Pty Ltd & Transport for NSW and Others (Barr), Fitzgerald Memorial Aged Care Facility Ltd (Brown), Jetstar Airways Pty Limited (Corbani), Gunnedah Leather Processors Pty Ltd (Goodacre), NSW Trains (De Giusti), Cowra Tyre & Brake Centre Pty Limited (Davis), Suretek Global Pty Ltd (Scott), Anglicare Community Services (Lama), Lockin Pty Ltd (Ware).
October 4, 2017
Another very light lawlist governing labour disputes faces an underworked Fair Work Commission today. The eleven applications are: UGL Rail Services Pty Ltd (Williams), Moree Local Aboriginal Land Council (Leslie-Briggs), Prixcar Services Pty Ltd (Leonardi), Bei Fang Food Supplies Pty Ltd (Yang), StarTrack Express Pty Ltd (Benson), YMCA SA (Slade), Jasmina Trust (Singh), Alemlube Pty Ltd (Astin), Broadspectrum (Australia) Pty Ltd (Johnson), Barcoo Retirement Village Incorporated (Hinds), Asciano Services Pty Ltd (Pemberton & Bryant and Others).
