TERMINATION OF EMPLOYMENT – application to dismiss by employer – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal of decision to dismiss unfair dismissal application – appeal lodged six days outside prescribed time period – appellant claimed appeal was lodged 21 days after date of correction to original decision – Full Bench accepted appellant provided satisfactory explanation for delay – Full Bench exercised discretion to extend time within which appeal could be lodged – permission to appeal application – powers on appeal only exercisable if error on part of primary decision maker – s.400 FW Act applies to this appeal – Commission must grant appeal if in public interest to do so – not persuaded grounds of appeal raised any issue of importance or general application – not persuaded matters set out in grounds of appeal raised arguable case of error – no basis that would justify grant of permission to appeal in the public interest or otherwise – permission to appeal refused. Appeal by Gill against decision of Hunt C of 7 July 2017 [[2017] FWC 2903] Re: Rio Tinto Aluminium Ltd t/a Rio Tinto Weipa
October 3, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – application for relief from unfair dismissal – appellant was employed as Storeperson and Order Packer – respondent dismissed appellant for misconduct following from a physical altercation with another employee – at first instance, Commission found that appellant’s dismissal was not unfair – appellant sought permission to appeal – rarely appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated [Wan] – in proceedings before the Commission in first instance, appellant sought to rely on report prepared by his psychologist – appellant stated that report specifically relates to his misconduct and provides supporting evidence that his PTSD/OCD was getting worse – report was not available at filing date – during proceedings, appellant alerted the Commission that his clinic had just submitted the report to chambers by email – Commission responded that the report had not been received and that evidence that was not tendered during the hearing could not be admitted – Full Bench found that report had not arrived in the inbox of the Commission until after conclusion of hearing at close of business – found that receipt of the report was not communicated with the appellant – also found that appellant was not provided with a copy of the report – Full Bench satisfied that appellant should have been given opportunity to make submission on the report – on Full Bench’s review, report contains material relevant in determining whether appellant’s dismissal was harsh, unjust or unreasonable – Full Bench considered Coal & Allied and GlaxoSmithKline – satisfied that decision at first instance manifests an injustice – satisfied appellant was denied procedural fairness – public interest enlivened – appellable error has been shown – permission to appeal granted – substantive appeal to be heard. Appeal by Rayner against decision of Binet DP of 21 July 2017 [[2017] FWC 1652] Re: Little Moreton P/L t/a H-R Products
October 3, 2017
RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application by CFMEU for right of entry permit for Mr Anthony Stott – MUA v FWC and Anor considered regarding whether organiser a ‘fit and proper person’ – assessment of personal characteristics of the proposed permit holder as they are necessarily concerned with suitability to properly discharge functions and exercise the rights, powers and privileges associated with holding a permit under the FW Act – declarations disclose no convictions of an offense described in s.513(1) of FW Act – applicant disclosed Federal Court proceedings against him in which some contraventions were admitted – Commission weighed admitted contraventions but considered that admission showed some level of acknowledgement of wrongdoing – Commission also weighed context including that conduct appeared isolated as applicant had been a permit holder for five years previously – Commission took into account fact that ABCC elected not to be heard or make submissions in relation to the application – Commission satisfied organiser fit and proper person – permit issued. Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
October 3, 2017
RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application for a right of entry permit – decision delivered ex tempore – edited version of decision published – application by Construction, Forestry, Mining and Energy Union for right of entry permit (permit) for organiser Andrew Ramsay – Australian Salaried Medical Officers Federation adopted – requisite training completed – matter relevant to fitness to hold permit disclosed – matter concerned decision of Commission to suspend permit for one month, which was overturned on appeal – relevant that no submission made by regulator – Commission satisfied all matters weighed in favour of conclusion that Mr Ramsay was a fit and proper person to hold a permit – permit to be issued as soon as practicable. Construction, Forestry, Mining and Energy Union
October 3, 2017
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
