ENTERPRISE AGREEMENTS – ambiguity or uncertainty – s.217 Fair Work Act 2009 – application for variation of enterprise agreement to remove ambiguity relating to nominal expiry date – applicant submitted that Agreement was to operate for three years with nominal expiry date of 24 October 2018 – nominal expiry date was incorrectly stated as 24 October 2017 – applicant submitted this creates an ambiguity as the Agreement provides for a wage increase to commence on 6 November 2017 – considered Golden Cockerel and Berri with respect to determining whether enterprise agreement contains ambiguity – no ambiguity or uncertainty found – consideration of power under s.602 to correct obvious errors – no obvious error found – application dismissed. Valmet Pty Ltd Enterprise Agreement 2015
October 2, 2017
Widespread public holidays have reduced the caseload of the Fair Work Commission today. The eleven on the list for hearing includes: Captain Choppers Pty (Dadswell), Whitehaven Coal Mining Limited (Eather), Holland Fire Door Installations Pty Ltd (Abella), Glendale Early Education Centre Inc (Jackson), Aeqvitas Pty Ltd (Callister), Kingston City Council (Hurst), Homestyle Aged Care Services (Pydde), The Nuance Group (Australia) Pty Ltd (Wong), Lovestock & Leaf Apac Pty Ltd (Heath), Mehmaz Pty Ltd ATF Yazdi Trust (Halsall), Curtin University (Mitchell).
September 28, 2017
Seventeen applications governing labour disputes are listed for hearing by the Fair Work Commission today. The list is: Woolworths Limited (Guillemain), Gonzalez Pty Ltd (Marafioti), Department of Justice and Regulation (Parsons), Salimi (Najjar), Hudson (O), Clark Equipment Australia Pty Ltd (Collins), Sydney Trains (Steck), Lynch Admin Services Pty Ltd (Maciel), Aurizon Operations Limited (Pearce), Australian Security and Investment Commission (Srivastava), Sealy of Australia (NSW) Pty Ltd (McNamara), Department of Human Services (O’Connell), JN Solutions Pty Ltd (O’Donnell), Federation Training (Sheehan), BCS Infrastructure Support Pty Limited (Beram), Dacumos & Cabral and Others (Monash Health).
September 28, 2017
CASE PROCEDURES – revoke or vary decision – s.603 Fair Work Act 2009 – Full Bench – application to revoke Decision [[2017] FWCFB 2907] refusing permission to appeal – Full Bench became aware that permission to appeal not required following decision – appellant opposed application – submitted that any power to revoke was excluded by terms of dispute procedure which rendered Commission’s decision as final – Full Bench disagreed with appellant’s approach – DP World considered and applied – Full Bench held that powers ordinarily possessed by Commission in relation to proceedings before it were able to be exercised – appellant also relied on Ross J in Grabovsky: ‘The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise’ – appellant submitted that there has been no change in circumstances, nor that the Decision was based on incomplete or false information, so no apparent basis for exercise of any revocation power which might exist – Full Bench rejected submission and held that the extract merely outlined circumstances where power to vary or revoke decision had been generally exercised – appellant asserted reasonable apprehension of bias – Full Bench held that the three instances relied upon by appellant did not satisfy test for reasonable apprehension of bias – therefore, not satisfied that Commission was rendered unable to exercise its power to revoke decision – held that as Agreement conferred right of appeal and Full Bench Decision refused permission to appeal, dispute not resolved and further decision must be issued to rectify the matter and to bring dispute to finality – Decision [[2017] FWCFB 2907] revoked – appeal to be determined to finality – matter to be relisted before Johns C for further directions. Glen Cameron Nominees P/L t/a Glen Cameron Trucking v Transport Workers’ Union of Australia
September 28, 2017
ENTERPRISE BARGAINING – protected action ballot – ss.437, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance Commission determined to make protected action ballot order (PABO) – controversy regarding form of ballot actions – out of ten actions at first instance determined to include six – determined not to include certain actions in PABO as actions did not fall within ambit of industrial action – both parties applications for permission to appeal heard together – Mornington Peninsula Shire Council (Council) advanced there were multiple errors of law in particular issues of construction – contended certain actions were framed as periodic or indefinite interruptions or stoppages to work in order to take the described action – contended definition of industrial action should be read down to prevent widening of its scope – submitted All Hallows’ School should be applied – ASU contended, amongst other issues, that there was requirement to consider whether or not action described, had potential to be industrial action and whether stoppage of work could be conditioned by doing a particular act – contended certain actions were within definition of industrial action – Full Bench considered certain actions properly described as industrial action – rejected some of Council’s submissions as action’s described activity had a delineating effect – found first instance construction of two of the actions did not describe the nature of any industrial action – did not accept ASU’s submission – Full Bench granted permission to appeal to Council – Council demonstrated arguable case of appellable error and raised important issues regarding construction of legislative scheme regulating PABO applications – also granted ASU permission to appeal because raised interesting questions about kind of action described in protected action ballot question which was capable of falling within description of nature of proposed industrial action – Council’s appeal upheld in part and orders varied – ASU’s appeal dismissed. Appeal by Mornington Peninsula Shire Council against decision and orders of Bissett C of 14 August 2017 [[2017] FWC 4184], [PR595300] and [PR595296] Re: Australian Services Union; Cross appeal by Australian Services Union
September 28, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – appeal against decision concerning dispute arising under enterprise agreement – dispute concerned application of redundancy under clause 23 of the Farstad (Indian Pacific) P/L (Integrated Ratings, Cooks and Caterers) Offshore Oil and Gas Enterprise Agreement 2015 (the Agreement) – decision at first instance dealt with meaning and interpretation of clause 23 – appellant challenged decision on a number of grounds – permission to appeal not contested – Full Bench proceeded on basis that appellant had right of appeal – whether decision under appeal was demonstrated to be incorrect – appellant submitted that the Deputy President erred in answering the questions put to her for determination by not dealing with or ‘failing to find’ on certain matters – Full Bench considered appellant’s approach misconceived – found that the questions were open-ended and that error could not be demonstrated in the Deputy President’s generalised answer to them – found that parties did not call for resolution of any specifically identified issue in dispute – found that the parties did not provide the Deputy President with factual background of dispute so as to permit proper determination of how clause 23 should apply in contemplated retrenchment of appellant’s employees – Full Bench observed that appellate intervention is not justified where the parties to the proceedings to date have failed to clearly identify the issues in dispute – Full Bench rejected each appeal ground – not satisfied that appealable error was demonstrated – appeal dismissed – as decision is unlikely to resolve matter to finality, the dispute proceedings in C2017/1574 are referred back to the Deputy President for further mediation, conciliation or arbitration as necessary. Appeal by Farstad Shipping (Indian Pacific) P/L against decision of Binet DP of 19 May 2017 [[2017] FWC 2650] Re: Maritime Union of Australia
September 28, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – application to deal with dispute arising under the QR National Coal and Regional Freight Support Enterprise Agreement 2010 (2010 Agreement) and the Aurizon Staff Enterprise Agreement 2014 (2014 Agreement) – jurisdictional objection – whether application could be made under 2010 Agreement – whether Commission could deal with dispute under 2014 Agreement about classification at a date prior to commencement of that Agreement – whether employee could continue to pursue dispute under dispute settlement procedure after employment has ceased – Commission satisfied no jurisdiction to deal with application to the extent it was made pursuant to 2010 Agreement [Streeter applied] – held it was clear dispute continued under the 2014 Agreement – application to be considered as one made under 2014 Agreement – an employee who commenced to deal with a dispute while employed is not precluded from continuing to progress that matter if it remains unresolved notwithstanding they may have ceased to be employed [Jajoo] – Commission satisfied it has jurisdiction to deal with application – matter to be listed for further directions. Pearce v Aurizon Operations Limited
September 28, 2017
CASE PROCEDURES – apprehension of bias – ss.394, 400, 604 Fair Work Act 2009 – appeal against decision and order of Commission made on 20 July 2017 – stay order sought for whole of decision and order pending appeal – application for stay order dismissed – appellant requested recusal of Member from presiding over Full Bench due to apprehended bias – application to recuse determined on papers – appellant alleged apprehended bias arose from paragraph [5] of stay decision – submitted conclusion expressed at [5] of stay decision would give rise to genuine concerns about decision maker’s ability to bring an impartial mind to hearing matter – submitted failure to afford appellant procedural fairness and natural justice – submitted matters raised in stay decision were not put to parties during stay and not debated in arguendo – relevant principles set out in Kirby v Centro Properties Limited (No 2) – elaborated on in Minister for Immigration v Jia Legeng – appellant submitted only first two of three elements in Legeng necessary to establish reasonable apprehension of bias – Laws v Australian Broadcasting Tribunal cited – Bench rejected appellant submissions – held that express reference to s.400 FW Act during stay application not necessary and did not amount to denial of procedural fairness – noted that stay application is interlocutory and views expressed were preliminary in nature with no conclusion made – noted that [6] of stay decision referred to ‘preliminary assessment’ – noted that [5] stated ‘without the opportunity to undertake a thorough analysis of the case material’ – not satisfied that fair-minded lay observer might reasonably apprehend that Member might not bring an impartial mind to resolution of matter – application to recuse refused – application for permission to appeal to be heard by Full Bench as constituted. Appeal by Reliable Petroleum P/L against decision of Hampton C of 20 July 2017 [[2017] FWC 3552] Re: Murray
